This action is in this court on appeal from a decree and judgment of the court of common pleas allowing as a preferred claim certain amounts to be paid from the assets of the Ohio Savings Bank Trust Company, now in process of liquidation by Ira J. Fulton, the superintendent of banks.

Six separate actions filed in the court of common pleas were consolidated, and thereafter heard and considered as one, and are now presented to this court, as in the court of common pleas, on a motion for judgment on the pleadings. Each of the plaintiffs in the actions so brought was an heir of John T. Coghlin, *Page 438 deceased, and as such is the owner in fee simple of an undivided one-twelfth of lots numbered 204 and 205 in Port Lawrence division in Toledo, Ohio, upon which is erected the Commodore Perry Hotel. The Commodore Perry Company leased from the owners thereof the premises aforesaid for a period of ninety-nine years at a stipulated quarterly rental of $4,500, payable in advance. The lease provides that this rental shall be paid to the Security Savings Bank Trust Company of Toledo, or to such other bank or trust company in Toledo as lessors may from time to time designate, and shall be distributed by such bank or trust company to lessors in proportion to their respective interests therein. Since the 17th day of June, 1931, the defendant, as superintendent of banks, has been in possession, for liquidation purposes, of all of the property and assets of the Security-Home Trust Company, theretofore the Security Savings Bank Trust Company. On June 19, 1931, the owners of the premises in question designated the Ohio Savings Bank Trust Company as the trust company to which the rentals were to be paid, the trust company agreeing to act as such trustee, in accordance with such designation, and under the terms of said lease, in the collection and distribution of the rentals payable thereunder. On July 31, 1931, the Commodore Perry Company paid into the trust department of the Ohio Savings Bank Trust Company the sum of $4,500, being the quarterly payment of rent then due. On August 11, 1931, a cashier's check for $375 was mailed to each of the co-lessors, among whom were the plaintiffs in the six consolidated actions. The checks so mailed, when received by these plaintiffs and presented for payment, were not paid. The Ohio Savings Bank Trust Company discontinued business on August 15, 1931, and on the following Monday, August 17, the defendant superintendent of banks took possession of its assets and property for liquidation. *Page 439 On and since August 15 there has been, and there now is, in the vaults of the Ohio bank a sum of money in excess of the rentals paid to it by the hotel company. A claim for preference presented by lessor plaintiffs was rejected by the defendant. The answer of the defendant admits the foregoing facts and alleges that the Ohio Savings Bank Trust Company was engaged in a general banking business, and that all funds received by it from whatever source derived were commingled together and all disbursements for whatsoever purpose were made from the commingled fund, and that such was the customary practice of banks; that it had received funds on account of various trust estates, aggregating $2,127,310.58, including funds of plaintiff, which it had so commingled, and that claims for preference for such funds and for an additional $1,498,792.30 have been asserted; that, at the time of closing, the bank had $2,026,537.23 cash in its vaults; and that the lowest amount of cash in vaults since the date of payment of said rent was on August 8, 1931, in the amount of $957,812.83. No reply was filed to this answer of the defendant.

The admitted facts stated in the pleadings disclose that the rentals received by the Ohio Savings Bank Trust Company were received for a specific purpose, and by the terms of their receipt it was expressly agreed that distribution of the rentals should be made to those for whom received and to whom payable.

Our opinion is that by no manipulation of the bank, either by commingling the rentals with other funds, or by otherwise using the same, could the trust imposed by the agreement be divested and the relationship created thereby be converted into that of mere debtor and creditor. Our conclusion, therefore, is that the sum of $4,500 received by the bank from the Commodore Perry Company as rentals is entitled to priority over the claims of general creditors, to be adjusted and determined *Page 440 in accordance with the rule indicated in State, ex rel. ToledoTheatres Realty Co., v. Fulton, Supt. of Banks, 124 Ohio St. 360,362.

Decree accordingly.

RICHARDS and WILLIAMS, JJ., concur.

ON APPLICATION for rehearing.

The several actions consolidated with the above-entitled cause were submitted and argued to this court on November 23, 1932, and on the same day the defendant filed an amended answer. The causes were submitted to the court on a motion for judgment on the pleadings, based upon the petitions of plaintiffs and this amended answer.

The decision of this court on the issues thus made was announced on December 19, 1932. On December 5, 1932, the defendant filed a written motion in the office of the clerk of courts for leave to file a second amended answer, a copy of the proposed answer being attached thereto. This motion is now first called to our attention, and having decided to grant same, we are confronted with the problem as to whether this second amended answer presents any controverted fact which would require a different conclusion than that reached on the motion for judgment on the pleadings as heretofore submitted and considered.

In the amended answer it is alleged that on July 31, 1931, the lessee "did pay to the Trust Department of said Trustee said sum of $4500.00 as rent for the quarterly period beginning August 1, 1931, and that thereafter said The Ohio Savings Bank Trust Company mailed to the owners of said premises checks for their respective proportions of said rent," this allegation being an admission of a similar statement of fact alleged *Page 441 in the petitions of plaintiffs. In the second amended answer the foregoing allegations are changed to read that lessee "on or about the 31st day of July, 1931, executed and delivered to the Trust Department of said Trustee, lessee's check drawn against its commercial account with said The Ohio Savings Bank Trust Company for the sum of $4,500.00 as rent for the quarterly period beginning August 1, 1931, and that thereafter said The Ohio Savings Bank Trust Company charged said check to said commercial account of said lessee, the credit balance in which said account was at that time in excess of the amount of said check, credited the amount thereof to the account of the Trust Department representing transactions between plaintiffs and said Trust Departments, and mailed to the owners of said premises checks for their respective portions of said rent." This is followed by the allegation that: "Defendant denies that said The Ohio Savings Bank Trust Company received from the lessee of said lease any currency, and further denies that the proceeds of the check which it did receive from said lessee ever became or was a part of its cash in vaults."

The facts as theretofore pleaded are otherwise unchanged and now it is claimed, as we understand it, that the foregoing allegations in the second amended answer, if true, require a different conclusion than that heretofore reached by this court on the facts disclosed by the pleadings then before the court, and as authority therefor our attention is called to the case ofBlakey, Recr., v. Brinson, 286 U.S. 254, 52 S. Ct., 516,76 L. Ed., 1089, 82 A.L.R., 1288. In that case it was sought to recover money alleged to have been paid to the bank upon trust for the purchase of United States bonds. The facts as there narrated are that Brinson, who had a credit balance of $1,961.31 in an interest-bearing savings account in the First National Bank of Newburn, N.C., had a conversation with an *Page 442 officer of the bank, who signified the willingness of the bank to purchase the desired bonds. Later this officer asked Brinson to make an additional deposit to cover the cost of the bonds to be purchased for him. Brinson thereupon drew a check on another bank for $2,100, thereby increasing his credit balance to $4,061.31. Thereafter, on October 15th, Brinson was informed by the bank officer that the bonds had been ordered, and on October 19th that they had been received, the officer then handing to him a charge slip showing that the price of the bonds, plus interest and commission, aggregating $3,964.60, had been charged to his savings account, and the books of the bank showed that a like amount had been credited as a "deposit" in a "bond account," which contained only a daily record of credits and their totals without reference to Brinson or any other customer of the bank and without any designation of its nature and purpose. No bonds had in fact been purchased, ordered or received in behalf of Brinson, and, other than the entry of the debit and credit items, the only transaction between him and the bank was the conversation had by him with one of the officers thereof. The bank closed its doors on October 26th, and, as above indicated, it is claimed that the amount charged to Brinson's savings account constituted a trust and should be considered as preferred above the claims of general depositors.

The court, however, held that the facts in evidence did not disclose such trust relationship. In its opinion the Supreme Court says:

"It would have been equally competent for respondent to have provided for the purchase of the bonds either by the creation of a trust of funds in the hands of the bank, to be used for that purpose, or by establishing with it a credit to be debited with the cost of the bonds when purchased. But only if the former was the method adopted, could respondent, upon the *Page 443 bank's insolvency and failure to purchase the bonds, recover the fund or its proceeds, if traceable, in preference to general creditors. * * *

"The relationship established between the bank and respondent by his savings account was, from its inception, that of debtor and creditor, and the credit balance of $1,961.31 in respondent's account on October 14 represented the amount of the bank's indebtedness to him. * * * On that date respondent's credit balance was augmented by the deposit of the $2,100 check, made in conformity to the usual course of business with respect to deposit accounts. Respondent obviously did not alter the debit and credit relationship with respect to the $1,961.31 balance by asking the bank to purchase bonds, or by handing to the bank the deposited check of $2,100. All that happened on that date was equally inconsistent with any purpose to create a trust of the check or its proceeds, and showed unmistakably that the amount of the check, as in the case of any other deposit in the savings account, was to be added to the existing balance and treated like it. In making the deposit, respondent used the customary form of deposit slip and, in accordance with its instructions, the deposit was credited by the bank in the usual manner, both in his passbook and in his savings account on its own books. After the deposit of the check, as before, the bank remained a debtor and the respondent a creditor for the amount of the credit balance."

The court further says: "We can find in this method of discharging a supposed obligation no hint of an intended alteration of the debtor and creditor relationship, with which respondent had been content from the beginning, to that of trustee and cestui que trust."

The facts show that the check was deposited by Brinson in an existing interest-bearing savings account, not for credit to some other person, but for his *Page 444 own credit and his own purposes; whereas, in the instant cases the check of the Commodore Perry Company, the lessee, was drawn on its commercial account in the trustee bank to the order of the bank for credit "to the account of the trust department representing transactions between plaintiffs (the lessors) and said trust department," and were so paid by the lessee, and so credited under the express agreement with the lessee and with the bank that the rentals were to be paid to and received by the bank for the sole purpose of distribution by its trust department to the lessors in the proportion to which they were entitled. So that, as it seems to us, the factual differences between the Blakey and the instant cases are such as to make that authority inapplicable to the questions considered by this court.

In the instant cases, by express agreement of the parties, the $4,500 in question was paid by the lessee company to the bank for the sole and specific purpose of distribution and remittance to the lessors in their respective proportions. In the Blakey case no such relation existed, the relation of Brinson to the bank being merely that of creditor and debtor.

If the Commodore Perry Company had drawn the check to its own order, and receiving the cash therefor had been immediately paid the money so received to the trust department of the bank, it would then have actually augmented the cash in the bank to the extent of $4,500. To say that what was done constituted a mere exchange of credits, when the admitted facts show that the money was in the bank and the amount of the check was charged out of the account of the Commodore Perry Company, and pursuant to the agreement among the parties was held by the trust company for remittance to the respective lessors entitled thereto, and cashier's checks therefor mailed to them, sounds to us too much like tweedledum and tweedledee. Some theorizing legal technician, who can *Page 445 "distinguish and divide a hair `twixt south and southwest side," may be able satisfactorily to mark the difference, but we cannot.

The application for rehearing is denied.

Rehearing denied.

WILLIAMS and RICHARDS, JJ., concur.