69 Wis. 115 | Wis. | 1887
The facts upon which the questions of law in this case arise are, in brief, these: The plaintiff, living in Dakota territory, bargained with one Rundell, of Grant county, Wisconsin, to sell him his Dakota farm for $2,000. He sent a deed of his farm, with an abstract of title, to Isaac Hodges, a banker doing business in Platteville, with instructions to collect from Rundell the $2,000, and on payment of the same to deliver the deed and abstract, and remit the money immediately to him in Dakota. The deed lay a few days in Hodges’ bank, when Rundell learned it was there and came to Platteville on the 8th of February, 1884, to get it. He reached the bank about 1 o’clock p. m.,
This question is hardly an open one in this court, for there is no fact in the case which can distinguish it in principle from that of McLeod v. Evans, 66 Wis. 401. So, unless that decision is to be overruled, it disposes of this case. The plaintiff there had left with this same banker (Hodges) for collection, a draft on a New York bank, which Hodges undertook to collect for him. He did not in fact send the draft to .New York for collection, but forwarded it to his banking correspondent in Chicago, and received oredit for the amount in his account with that bank. Subsequently he drew upon the Chicago bank until this fund was exhausted. Before payment to the plaintiff there, he made the assignment which figures here. Of course, the assignee received the same amount of money named in the testi
In the former case one R. W. Kerr, by fraud and deceit, obtained from respondent a loan of $3,500; the amount being placed to his credit, and subject to his draft or check, in respondent’s bank. Kerr afterwards drew out the money, and placed it in the possession and control of E. ~W. Kerr as his agent, by causing it to be deposited in a bank ■ in Still-water to the credit and subject to the check of E. W. Kerr. Subsequently the appellant, by fraud and false pretenses, induced E. ~W. Kerr, as agent of R. W. Kerr, to pay over the
In the Thompson Case a national bank sent to a savings bank two notes and a draft for collection. The latter collected the draft and one of the notes, and sent the other note for collection to another bank. The collections were not kept separate by the savings bank, or in any way distinguished from its other funds. Soon afterwards the savings bank failed, and a receiver was appointed to settle its affairs, who claimed that the national bank was only entitled to share pro rata in the assets. The court held that the relation between the two banks was tjaat of principal and agent, and that the national bank was entitled to be paid' the full amount collected on the note and draft, with interest, and might look to the other bank for the note which the savings bank had sent it, if still in its possession.
In the case at bar it would seem that the trust should be enforced as to the $400, even though the identical $100 bills which were paid Hodges by Rundell did not come to the possession of the assignee. But $500 in cash came to his possession, and we must presume that the particular four $100 bills were paid out by Hodges on the afternoon of his failure, instead of this $500 fund, either to discharge bona fide debts or purchase property which became a part of his assets. As to the $1,600 which was paid in certificates of deposit, there may be more room for doubt. "We remark that it was a gross breach of duty on the part of Hodges to deliver the deed to the purchaser without being paid in money. His instructions upon this point were clear and positive not to part with the deed until the consideration was paid. When the certificates were issued, it does
There is an instructive note by Judge Pierce to the case of Third Nat. Bank v. Stillwater Gas Co. in the American Law Register, supra, where many cases on this branch of the law are commented upon by the writer; and we think it is a fair result of the authorities, under the circumstances of this case, to say that the general assets in the hands of the defendant are impressed with a trust in favor of the plaintiff to the extent of $2,000, which Hodges wrongfully misappropriated. It was a clear fraud on his part to receive those certificates, instead of claiming the money, on the eve of his failure. He violated his instructions in receiving them, and in delivering up the deed.
It appears that the plaintiff was listed as one of the
The objection that there was a defect of parties defendant is not seriously insisted upon. We suppose the assignee represented the creditors of the estate for the purposes of the litigation, and to settle the rights of the plaintiff to his equitable claim on the assets in the assignee’s hands.
It follows from these views that the judgment of the circuit court must be reversed, and the cause remanded with directions to render judgment in conformity with this decision.
The $400 belonging to the plaintiff was paid in cash to Hodges, but was not traceable to the hands of the assignee. Presumably, it was used in paying debts or otherwise in the business. The $1,600 was not paid in money, but by the surrender or cancellation of that amount of certificates of deposit which had formerly been issued by Hodges. This operated as a cancellation or payment of' so much of Hodges’ debts. Such being the
The learned justice writing the opinion in the case of Third Nat. Bank v. Stillwater Gas Co., referred to by the chief justice, supra, cites a class of cases, including McLeod v. Evans, “as illustrating the extent to which courts of equity have carried this principle,” there and here applied, and then adds: ■“ Some cases go so far as to hold that the trust character still adheres to money, even though it cannot be traced into any specific property. In the case at bar, it is not necessary to go to any such length in order to charge this money in the hands of appellant with a trust in favor of respondent.” It seems to us that the decision in McLeod v. Evans goes further than any other well-considered adjudication of an appellate court. While we bow to the rule thus affirmed by the majority of the court as a binding authority, which must be followed while it remains, yet we do not concede the logic of the reasons given, nor the application of the authorities cited in support of it.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment in conformity with this decision.