#### Central State Bank et al., appellees, v. Farmers State Bank et al., appellants.

Filed May 5, 1917.

No. 19984.

Banks and Banking: “Deposit:” Failure to Pay: Guaranty Fund. When a party, in good faith, and in the usual course of business, places money in a state bank under an agreement that the account shall be subject to check and shall draw interest at a rate not exceeding that fixed by statute, it becomes a deposit under the provisions of sections 280-356, Rev. St. 1913, and, in case the bank fails to pay on demand, it may be made a charge against the depositors’ guaranty fund.

Appeal from the district court for Burt county: George A. Day, Judge.

*Affirmed.*

*Willis E. Reed, Attorney General,*and *Dexter T. Barrett,*for appellants.

*Lambert, Shotwell & Shotwell, contra.*

Morrissey, C. J.

This is an appeal from an order of the district court for Burt county allowing the claim of plaintiff against the defendant, who is the receiver of the Farmers’ State Bank of Decatur. Albert S. White, who was in active charge of the organization work of a proposed banking corporation, called the Central State Bank, made three deposits in the Decatur bank, aggregating $8,000. May 2, 1916, after the completion of the organization of the proposed Central State Bank, White drew his check against the deposits for the full amount thereof, less the accrued interest, and it was redeposited in the name of the real owner of the account, the Central State Bank. This deposit was made on the same terms as the original deposit. Four days thereafter the state banking board took possession of all of the assets of the Farmers State Bank of Decatur, and subsequently a receiver was duly appointed.

*211The plaintiff herein filed its petition for the allowance of its claim in the principal sum of $8,000. White, as secretary, filed a claim in the sum of $45.77 for the interest accrued while the deposit stood in his name as secretary. The attorney general filed objections to the allowance of the claims, alleging that the money was not deposited in the usual course of business, nor entitled to the protection of the depositors’ guaranty fund. The evidence shows that the deposit was made for an indefinite period, with the agreement between White and the bank that it should draw interest at the rate of 5 per cent. White was receiving subscriptions from numerous parties to the capital stock of the Central State Bank. He testified that he made similar deposits in other banks, intending to withdraw the money when the new bank should be chartered and be ready for business. He admits that he learned from the cashier of the failed bank that the bank was in need of money, as its deposits were decreasing, and he did not want it to become embarrassed, but that that was a minor reason, that he would not have made the deposit if he had not known it was protected by the depositors’ guaranty fund. There is no contradiction of this. The account was subject to check; it might have been drawn out any day without notice; and the interest agreed upon was within the limit fixed by statute. Neither White nor any other person acting for plaintiff was a stockholder of, or officer in, the Decatur bank. The transaction appears to be free from fraud, and the judgment of the district court is

Affirmed.

Rose, J., not sitting.