69 Miss. 700 | Miss. | 1892
delivered the opinion of the court.
It appears from the evidence of the witness, Lamon, that, as the agent of the Armour Packing Company, he received a certain car-load of meat, which he was authorized to sell for and on account of his principal, and that, as such agent, he did sell $1,047.67 worth of said meat, and deposited said sum with the First National Bank of Greenville in his own name and to his own credit. It likewise appears, from the evidence of this witness, that, at the time the money was so deposited, he notified the bank that it was the money of. the Armour Company, and that he directed the bank to remit the same to said company. There is, too, evidence tending to show that the bank had notice that the money was the proceeds of the said car-load of meat, and that, at the time of making the deposit, the proper bank official indicated and distinguished this from other money deposited by Lamon by writing the word “meat” opposite the entry in the pass-book of Lamon. In like manner, it is shown that the bank cashier and Lamon
In this connection it is only necessary to observe that the bank officials deny, positively, any notice that the Armour Company was the real owner of the deposit, and that any direction was given by Lamon to remit the same to his principal, as testified to by him, until after the deposit had all been paid out on Lamon’s checks.
The action of the trial court in peremptorily instructing the jury to find for the bank, and in refusing all the instructions prayed by the Armour Company, must have been based upon the general rule that the relationship between a bank and its depositor is that merely of debtor and creditor, and that, so long as there remains a balance in favor of the depositor, it constitutes a debt due the depositor which the bank is bound to liquidate by honoring the checks of the depositor to the extent of the deposit. This rule, in its general aspects, is correct, but its application to the facts of this case on the trial below was too literal. The limitations and qualifications of the general rule w’ould seem not to have been sufficiently regarded.
Ordinarily, the bank is required to pay the checks drawu against a deposit by the person making it, until the fund is exhausted; but, if the bank has notice that the money deposited really belongs to another person, then the payment of the checks of the depositor, after such notice, will be at the peril of the bank. “A merchant sends his clerk to deposit money in bank, and, instead of depositing it in the name of his employer, he deposits it in his own name. Would a payment to the clerk, after having notice of the fraud, protect
But in considering and determining this case (regarded in the light of Lamon’s evidence), we do not rest our opinion upon the foregoing ground exclusively or chiefly. Bather, we put it upon the proposition that, if there ivas a misappropriation of the trust-fund by the bank, or, if there was a beneficial participation in the misappropriation of the trust-fund ■on the part of the bank, after knowledge of the fact that Lamon held the money in a fiduciary character, and that.the Armour Company was the real owner of it, then the bank was liable for the fund. If Lamou’s evidence is to be believed, then there was participation by the bank, in its own interest, in the misappropriation of the money,; for by Lamou’s direct testimony, as -well as by his letters introduced in evidence, it is shown that this money, so deposited under the circumstances narrated by him, was applied by the bank in payment of his overdrafts. The soundness of this view was recognized and asserted by this court in the very •carefully considered case of Eyrich v. Capital State Bank, 67 Miss., 60.
According to Lamou’s testimony, and from his letters used •on the trial, there was evidence showing, or tending to show, that notice was given the bank that the $1,047.67 deposited by Lamon was the proceeds of the particular car-load of ■meat sold by him for and on account of his principal, and that the money really belonged to the Armour Company; and, in addition to this, that when the deposit was made, and notice given, directions were given the bank to remit the same to the real owner. Equally clear is the evidence we are looking at to the effect, that, after such notice and direction, the money so deposited was appropriated to the settlement
There was another principle contended for by appellant’s counsel on the trial below, and pressed upon us here. Stated in its simplest form, it is this: When instructions accompanying a deposit are given the bank by the depositor, they must be obeyed. The general proposition is elementary, and need only be stated. True it is, however, ordinarily, that the bank would not be required to obey instructions verbally given as to the disposition of a deposit. But if the bank accepts the verbal direction, and, either expressly or by fair implication-, consents to follow such direction, we do not see wThy it should be thereafter heard to say that it was only required to follow written directions given by the depositor. According to Lamon’s evidence, when he deposited this money in bank, he not only disclosed to the bank who the real owner was, and had an appropriate notation to that effect made by the bank officer in his pass-book, but he expressly directed, vei’bally, the transmission of the xxioney to his principal without any question on the bank’s part of the sufficiency of the manner of giving the direction, and without any intixxxation of its purpose not to obey the instruction.
We intimate no opinion, of course, as to the value of Lamon’s testimony; but, whatever its worth, it seems clear that it presented issues of fact which should have beexx submitted to the jury, under proper instructions from the court, in view of the law applicable as we have annoúced it.
Reversed and remanded for a neto trial.
