18 Mo. App. 443 | Mo. Ct. App. | 1885
Opinion by
This action was instituted in a justice’s court, and
“On April 3, 1878, the defendant lived some ten or fifteen miles out of Kansas City, Jackson county, Mo., and started to Kansas City with a lot of cattle for sale. At New Santa Pe, near defendant’s residence, the plaintiff, with the consent of the defendant, put a steer into the lot. The cattle were all driven to the stock yards at Kansas City, and there sold as the property of the defendant. The whole lot came to some $2,300. Plaintiff and defendant caught the weight of plaintiff’s steer when being weighed, and it came to fifty-six dollars.
“ Plaintiff went home and left the defendant to get the money. The defendant got a check for the aggregate aforesaid on the Mastín bank from the purchaser. The defendant then went to the Mastín bank, but it being closed for the day, it being after banking hours, left the check with his brother to be deposited to the account of defendant the next day, which was done. ■ Both plaintiff and defendant had an account with the bank. Plaintiff inquired at the bank, and found the money had not been placed to his account. Defendant met the plaintiff soon thereafter, and told the plaintiff how he had deposited the money, and said he would give the plaintiff a check for the fifty-six dollars. The inquiry at the bank by plaintiff, and the information given plaintiff by the defendant as to how it had been deposited, all occurred within ten days after the sale of the cattle. No check was actually made out to the plaintiff, nor did he demand one. Plaintiff did not demand the money until after the failure of the bank, and no objection was made by the plaintiff to what defendant, had done with respect .to it. The bank faffed in August of that year. At this time the defendant had to his credit still in the bank some $300, the balance having been used by him. There was no design, on the part of the defendant to keep the plaintiff out of his money, and he would have given the plaintiff a check at any time when asked so to do. On the foregoing*447 finding of the facts the court declares the law to be that the relation of debtor and creditor existed, and the judgment must be for plaintiff.”
From this judgment the defendant has appealed to this court. As the bill of exceptions does not contain any of the evidence introduced at the trial, the special finding of the court must, for the purpose of this appeal, be regarded as a special verdict. So the only question to be determined is as to the conclusion of law drawn therefrom.
The contention of the appellant (defendant below) is, that the transaction between the parties constituted a mere bailment, and the defendant must be regarded as a bailee without hire. It is, perhaps, unnecessary to discuss the distinction between a deposit and a mandate, and to determine to which of the two species of bailments this should be referred under defendant’s theory; for, as stated by Story, in note 4, page 143, of his work on Bailments, ninth edition: “In. almost every instance where a gratuitous bailment for the bailor’s benefit has been presented, the court avoids making an issue between deposit and mandate, basin'g its legal conclusion upon principles common to both classes.”
It cannot be said there was any bailment of the steer with the defendant, because the law is well settled that in order to constitute such bailment the parties must have intended that there should be a return or delivery of the identical thing bailed. 2 Kent. Com. 558; Trunick v. Smith, 63 Pa. St. 18-23; Story on Bailments 47, 93, 150, 283.
The very purpose of the parties in placing the steer in defendant’s herd was to have him sold just as was done. When he was sold, and the amount of the purchase money ascertained, the plain interpretation of the understanding between the parties must be, that the plaintiff entrusted to defendant the collection of the purchase money, and an implied promise on the part of the defendant that, without reward, he would collect and account to plaintiff therefor. It could not, therefore, be strictly said there was any bailment of this
No one, save the depositor, could check on the bank therefor. The plaintiff could not have maintained any action against the bank for his portion thereof. Dickson v. Coats, supra.
It must logically follow, therefore, that if the money was lost through the subsequent insolvency of the bank the loss would fall on him who, unbidden, saw fit to make the deposit in his own name.
“ A trustee may deposit money temporarily in some responsible bank or banking house; but he will be liable for the money in case of a failure of the bank, or for its depreciation, if he deposits it to his own credit, and not
In Mason v. Whitthorne (2 Cold. 242), it is distinctly held, that where the trustee deposited the trust fund in bank, mingling it with his own, in his name, he thereby treated the money as his own: " Prom that moment it ceases to be at the risk of the cestui que trust, and is at the risk of the trustee.” . ^nd, therefore, the depositor was responsible for any loss in the subsequent depreciation of the money.
■ This is in accord with the rule in this state. State v. Powell, 67 Mo. 395; State v. Moore, 74 Mo. 413 ; State v. Rubey, 77 Mo. 610; Knecht v. U. S. Sav. Inst., 2 Mo. App. 563.
It is true the defendant, after he had deposited the money in bank informed plaintiff of the fact, and told him he would give him a check therefor at any time. But he did not offer him the check, nor do any other act to change the existing relation between them. The defendant then owed the plaintiff the money. He had placed it where the defendant could not recover it except on his check. So far from this subsequent conversation warranting the conclusion that plaintiff by his silence exonerated the defendant from his personal liability to him for the debt, it rather justifies the inference that the plaintiff regarded his neighbor as solvent and honest, as he was, and not needing the money, did not insist on its payment then. If the plaintiff had intended to trust the bank rather than plaintiff, he would have taken the check from defendant and transferred the account to his name.
Our conclusion is, that it cannot be maintained that after the defendant had deposited the money in bank in his own name, and thereby established the relation of creditor and debtor, as for -money loaned by defendant to the bank, that he held the money as bailee of the plaintiff. The conclusion reached by the circuit court was unavoidable, and the judgment must be affirmed.