25 Mont. 456 | Mont. | 1901
delivered the opinion of the Court.
By consent of the parties these causes were consolidated and tried together in the court below. The actions are for moneys received on September 28, 1896, by the defendant bank from
Distinguished counsel have with a wealth of learning and with great ability argued and discussed at length many questions which we find not to be necessarily involved in the determination of these appeals. Abstracts of their briefs will be preserved in the report of this case. Some of the differences between counsel arise, we think, from a failure to give full significance to the facts. The transactions disclosed by the evidence created relations and rights that may be easily ascertained by the application of a few elementary principles of law.
In respect of thefacts therewas but little controversy. Between the testimony given by one Johnson, the cashier of the defendant bank, and one Miller, and that given by the plaintiffs, some conflict existed; but whatever the evidence in behalf of the prevailing parties tended to prove must, for the purpose of these appeals, be considered as established. So viewing the evidence, the material facts, concisely stated, are these: The plaintiffs, one John S. Miller, and one Wilson, owned in common certain mining claims called the “Diamond Hill Gold Mines.” McDonald agreed to sell, and’ sold, his interest to Miller for $50,-000, and Cooney agreed to sell, and sold, his interest to Miller for $25,000. McDonald’s deeds of conveyance were placed in the defendant bank in escrow to be delivered to Miller upon the payment of the full purchase price. The deeds of conveyance made by Cooney were delivered directly to Miller, the grantee, who placed them with the defendant bank; and Cooney also left with the defendant bank for collection the notes of
The actions are for moneys received by the defendant bank from Nimmo and Mitchell to and for the use of the plaintiffs. Much argument has been advanced with respect to> the liability of the bank for'the' supposed fraudulent misrepresentations of its cashier. It has been strenuously insisted that he was guilty of fraud and deceit in passively concealing from the plaintiffs the directions quoted in the seventh paragraph of the contract and at the same time representing that a further payment of $100,000 was to be made to Miller within thirty days, when he must have known from the contract that the draft for $96,800 was the final payment. If by fraud or deceit the plaintiffs were induced to waive or surrender any legal rights or sustained other injuries, they must seek remedies in appropriate actions. Unless the bank received money to and for their benefit they cannot prevail under the present pleadings.
Miller purchased from the plaintiffs their interests in the Diamond Hill gold mines and he was indebted to them for the unpaid purchase price. Neither Niimno and Mitchell nor the company bought or agreed to buy from the plaintiffs, and hence neither of the former was indebted to either of the plaintiffs or owed to them, or to either of them, any legal duty whatsoever with respect to the money to be paid to Miller as the purchase price. But as Nimmo and Mitchell knew that the plaintiffs held or had held interests in the properties, they determined not to make full payment directly to their vendor, Miller, but to send, or cause the Diamond Hill Gold Mines, Limited, to transmit, the purchase price or a sufficient part of it through such channels as would insure their own and their company’s protection against adverse claims for the unpaid purchase price or for liens or incumbrances of any kind. Such method of payment was chosen from motives of self-interest
What, then, was the legal relation of the several parties to the funds while thus in the custody of the bank ? As we have-said, the Scottish purchasers did not buy from the plaintiffs; they were under no obligation to them; they owed to them no duty and they owed to them no money. They did not agree to pay Miller’s debts to the plaintiffs, but for their own protection made Miller agree that they or their corporate successor might send a part of the money due from them to Miller to' the defendant bank with authority to pay the plaintiffs therefrom. When they authorized and directed the bank to pay the plaintiffs it was not because they had promised the plaintiffs to do so, but merely because they had required Miller to consent to that method of protecting themselves and pursuant to a stipulation for their benefit and protection in the contract with him. At the time the remittance was made, it was not, nor were the conditions and restrictions as to payment, purely voluntary; the payment of the funds into the bank was made at the time, by the method, and upon the terms theretofore agreed upon between the vendor, Miller, and the Scottish purchasers, Nimmo and Mitchell; hence the deposit and its accompanying directions as to disbusement were in discharge of obligations and
While we have thus briefly considered the rights of the respective parties as to the contract between Nimmo and Mitchell and Miller and the funds to be paid into the bank pursuant to it, and have decided that neither the bank nor the plaintiffs had any vested rights concerning either, and that the parties to the contract had complete control of it and of the funds remitted under it, we cannot ignore the fact that the contract was not modified or annulled and the funds were not recalled. Bnder these circumstances and in the light of the relation of the respective parties and persons to the funds, what was the legal force and effect of the seventh paragraph, which was not modified or annulled and subject to the terms and conditions of which the special deposit was made ? When the funds were accepted by the bank, its cashier! received a copy of the written contract, and this constituted the sole source of the bank’s authority touching the disposition of the funds; the contract provided that the money should be forwarded to the bank and how it should be applied by the bank. In so far as the contract related to the funds, its purpose was to give specific directions by the depositors as to the disbusements to be made by the bank out of the funds thus deposited. The restrictions and direc
Nor the purpose of testing the soundness of this contention we inquire when the supposed duty of the bank to the plaintiffs arose, when its supposed promise was implied, when the plaintiffs’ supposed rights matured, and when the depositing owners of the funds lost all rights to, interest in, and control over the funds thus specially deposited? If after the funds had been deposited pursuant to the terms of the contract and before any payment had been made by the bank, all of the parties to- the contract had rescinded it, notified the bank of the rescisión, and demanded the return of the funds, could the bank have successfully refused to comply with the demand upon the ground that while such revocation might have been effective at any time before the deposit was actually made; yet the moment the bank accepted the money it impliedly assumed obligations to the plaintiffs of which the depositors could not relieve it? When A. furnishes funds to B. and directs him to' pay! them to C. to whom A. is not obliged to1 pay them and to whom \ he owes no legal duty in that regard, is such authority irrevoca- i ble or may it be recalled at any time before the power is exercised by making payment ? These questions answer themselves. The sole source of the bank’s authority was the provision contained in the seventh paragraph of the contract, and by accepting the deposit the bank impliedly promised not to make any payments except such as the depositors authorized, and if the payments agreed to be made and therefore authorized and directed had been afterwards forbidden by the unanimous action
The plaintiffs are not asserting in a suit against hi immo and Mitchell, or the Diamond Hill Gold Mines, Limited, the Scottish purchasers, that the latter promised Miller to pay his debts to the plaintiffs. The actions rest upon the theory that the bank made an implied promise to Nimmo and Mitchell to pay to the plaintiffs the amounts of Miller’s debts to them, and it is contended that this promise is to be implied from the mere acceptance of the funds from the Scottish purchasers with directions to pay the plaintiffs therefrom, and that such promise was a contract made expressly for the benefit of the plaintiffs. It is further contended, as has already been observed, that the receipt of the deposit created a voluntary trust of which Nimmo and Mitchell (or the Diamond Hill Gold Mines, Limited) were trustors, the defendant bank trustee, and the plaintiffs beneficiaries. It is not suggested that Miller; was trustor. Section 2951 of the Civil Code defines a voluntary trust as an obligation arising out of a personal confidence reposed in and. voluntarily accepted by one for the benefit of another. Section 2953 of the same Code declares that “the person whose confidence creates the trust is called the trustor; the person in whom the confidence is reposed is called the trustee; and the person for whose benefit the trust is created is called the beneficiary.” Section 2956'declares that “a voluntary trust is created, as to the trustor and beneficiary, by any words or acts of the trustor, indicating with reasonable certainty, * an intention on the part of the trustor to create a trust.” Counsel have failed to cite any well-considered case involving the application of legal principles to facts similar to those here presented in which either contention has been approved by a court of last resort; nor do we think the principles of law or the doctrines of equity countenance either position. In so far as they are applicable to the facts .of the case at bar, the fundamental principles in the light of which Section 2103, supra,, should be interpreted
We are of the opinion, therefore, that although the bank was authorized to pay to the plaintiffs more of the funds than it did pay to them, it was under no legal obligation to' the plaintiffs to make such payments; that whatever obligations it impliedly assumed towards the funds were obligations to the depositors and not to the plaintiffs, and the limited obligations thus assumed were not obligations to pay the plaintiffs but, rather not to pay Miller until the unpaid purchase price due from him to them had first been liquidated; — and hence it was not liable to the plaintiffs to whom it might have made but did not make payments. Entertaining these views, wé perceive no reason for considering the relative rights .of trustees and beneficiaries which have been so fully and exhaustively discussed by counsel. Under the pleadings and proof we think it clear that so far as the plaintiffs are concerned the law relating to trusts is without pertinency.
The evidence did not tend to prove that the defendant bank received to or for the use of either plaintiff any money from Nimmo and Mitchell or the Diamond Hill Gold Mines, Limited. The allegations of the complaints were not sustained by the proofs, and hence the plaintiffs failed to make a case. Irrespective, therefore, of the effect of the orders given. by the plaintiffs to the bank, the plaintiffs were not entitled to recover in actions for moneys received by the defendant from Nimmo and Mitchell to- their use.
The orders and judgments appealed from are reversed and the causes are remanded with directions to grant new trials. ■
Reversed and remcmded.
Rehearing denied July 31, 1901.