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571, the doctrine contended for has the relation which the plaintiff reundergone a material modification. fused to accept. The Helena bank While it may be impossible to follow was unquestionably the agent of the the fund in its diverted uses, it is New York bank to pay the plaintiff a always possible to make it a charge specified sum of money, but when the upon the estate or assets to the in- Helena bank refused to make the paycrease or benefit of which it has been ment, as directed by the New York appropriated. The general assets of bank, and undertook to deal with the the bank having received the benefit plaintiff on its own account, it adof the unlawful conversion, there is mitted that it had in its possession nothing inequitable in charging them the specific sum, and the bank and with the amount of the converted its receiver are estopped from denying fund, as a preferred demand." To that such was the fact." the same effect, see Widman v. Kel- Where money is paid to and aclogg (1911) 22 N. D. 396, 39 L.R.A. cepted by a bank for the purpose of (N.S.) 563, 133 N. W. 1020.
transmitting the same to the holder Similarly, where a city deposited of a note made by the person so paymoney in a local bank for trans- ing, and the same is mingled by the mission to a bank in New York, for bank with its assets, and used to the purpose of meeting its maturing swell its general estate, and is not coupons and bonds, it was held that transmitted, and the bank thereafter the deposit was impressed with a makes an assignment for the benefit trust, and, on the failure of the bank, of its creditors, the money so received the city could claim the deposit in will be held to be a trust fund, and, preference to the general creditors. though the specific money cannot St. Louis V. Johnson (1879) 5 Dill. be followed, a trust therefor will at241, Fed. Cas. No. 12,235.
tach to the entire estate, which may In Moreland v. Brown (1898) 30 be enforced against the assignee by C. C. A. 23, 56 U. S. App. 722, 86 Fed. the person for whose benefit the trust 257, it appeared that a debtor de- is created. Ryan v. Phillips (1896) posited in a New York bank the 3 Kan. App. 704, 44 Pac. 909. amount that he owed to a creditor in In the case of Re Jarmulowsky Montana. The New York bank tele- (1919) 169 C. C. A. 297, 258 Fed. 231, graphed a Montana bank to pay the it was held that a depositor of funds debt and charge the same to its with a private banker, for the puraccount. The Montana bank refused pose of transmission to
a person to pay in any way except by exchangé abroad, could, on the insolvency of on New York, which the creditor re- the banker, recover the funds if he fused to accept. The creditor also could trace and identify them; and refused to permit the amount to be the fact that, by the New York statplaced to his credit in the Montana ute, such a depositor was given a bank. He then accepted a draft on preferred claim against certain sethe New York bank, to be a payment curities deposited by such bankers only if honored. The Montana bank with the state superintendent of bankthen failed and the draft was not ing, did not prevent a recovery. paid. The court held that the refusal But it has been held that the drawof the creditor to accept the draft in ing of a check by a depositor, paypayment, or to permit the amount to able to the bank, and for which be placed to his credit, fixed the the bank issued a certificate of decharacter of the deposit in the Mon- posit payable to a third person, did tana bank as a special deposit for not place the responsibility on the him, made by the New York bank bank of remitting the money to the in the execution of an express trust; third person, and so constitute a in which the title to the money was trust in the fund in favor of such in the creditor. The court said: third person. People v. California “The relation of debtor and creditor Safe Deposit & T, Co. (1913) 23 Cal. was not established. It was precisely App. 199, 137 Pac. 1111. In that case
it appeared that an attorney who age of money for Furlong, where the had on deposit in a bank certain identical thing was to be returned to money belonging to his client wished
him as a depositor, and it was not a to send it to her, and drew a check deposit to the general account of the on his deposit, payable to the bank, depositor, Furlong, or Woodhouse. and, in return, received a certificate The receipt specified the terms and of deposit, payable to his client. On conditions of the deposit, and shows the failure of the bank before the that it was not for entry on the genercertificate was paid by it, it was con- al account of either of the parties. tended that the transaction consti- In the case of a general deposit with tuted a special deposit impressed with a bank to the credit of the depositor, a trust in favor of the client, and the relation created is not that of therefore entitling her to a preference principal and agent or of trustee over the general creditors of the bank. and cestui que trust, but is merely In denying this contention the court, that of debtor and creditor. Such after reviewing numerous cases, said: deposits belong to the bank and "In all these cases the deposit was become a part of its general funds, made subject to an agreement by the and there is nothing but a liability bank that the money would be used as debtor to repay according to the in some particular manner or to pay customs and usages of the business. some specified third person. Where, This deposit was for a specific purhowever, the deposit is for the credit pose, for the benefit and security of of the depositor or some other per- a third person (Charles F. Woodson, as in the case of a certificate house), and it created a trust relation of deposit, there is no intent to make in his favor. The banking firm asà payment of some specific claim of sumed the position of a trustee, and a third person, as
in the cases the 'money deposited constituted a cited. There was here no
agree- trust fund, which the bank was bound ment by the bank to pay the specific to keep intact for the purpose of the claim of Mrs. White. Its agreement trust. The obligation of the bank was to pay the certificate of deposit was to preserve the sum of $1,500 as according to its terms, and it implied a trust fund for the person mentioned no obligation to hold as a trust fund in the receipt, and to apply it to the the amount called for in the certifi. purposes therein specified, and the cate.”
title to such trust fund did not pass
to the bank as a part of the general 1. Deposit as security.
funds of the firm, The certificate Where a deposit was made by a
of deposit was made and attached to lessee for the specific purpose of se- the receipt merely for the purpose curing to his landlord the payment
of identifying and following the fund of rent, etc., and the bank so accepted
and showing where it had been put. it and gave its receipt therefor,
That was to conform to the plan of setting out the terms and conditions
keeping books adopted by the bank, on which it was made, it was held
and the system of bookkeeping by that a trust was created in favor of
the trustee could not affect the subthe landlord which he could enforce stantial rights of the beneficiaries." in preference to the general creditors The court in Woodhouse v. Crandall of the bank, provided he could suf- (Ill.:) supra, distinguished the case of ficiently trace and identify it under Mutual Acci. Asso. v. Jacobs (1892) the rules governing the tracing of 141 III. 261, 16 L.R.A. 516, 33 Am. St. trust funds intermingled with other Rep. 302, 31 N. E. 414, wherein it was funds. Woodhouse v. Crandall (1902) held that a deposit by the accident 197 III. 104, 58 L.R.A. 385, 64 N. E. association for the purpose of in292, reversing (1902) 99 Ill. App. 552, demnifying the sureties on' an appeal wherein it was said: “The transac- bond was nevertheless a general detion in this case was not a mere bail- posit, on the ground that in that case ment for the safe-keeping of a pack- the accident association knew that the money, which had been given in purpose of securing a surety upon a the form of a check on another bank, bond, and should be continued until was drawn out and mingled with the such surety should be released from general funds of the bank, and used liability." The court further held by it in the usual course of its busi- that the nature of the deposit was ness, and in the same manner as other further fixed as general by the action funds of the bank.
of the depositor in subsequently Where a deposit is made in a bank drawing a check against the fund, as security for the signing of a bond, payable to "certificate of deposit," and a duplicate deposit slip is given, such as would be necessary to draw such as it is the custom to use where out funds on general deposit with a general deposit is made, the fact the bank. On this point it was said: that there is a notation on the de- “All of these papers were such as posit slip, stating that it is "security would have been required in the for signing bond to be held by bank,” transaction of the business if the dedoes not render the deposit a special posit was a general one, and none of one, giving rise to a trust relation. them would have been required had Dearborn v. Washington Sav. Bank the deposit been a special one; and (1895) 13 Wash. 345, 42 Pac. 1107, if they are to have their legal effect, wherein it was said: “The fact that they conclusively establish the fact the deposit was entered by the bank that the deposit was general, and not upon this kind of a slip would, , in special. The only way in which their itself, be very strong proof that it force is sought to be met is by the understood that it was a general de- general statement by said respondent posit, and that, in receiving it, it be- that he did not understand their came the debtor of the depositor, and force and effect when he received or not his trustee. This manner of signed and delivered them; that all treating the deposit on the part of the he supposed he was doing was, in bank would not have bound the de- one instance, getting a receipt for positor had it not been made known his money, and, in the other, giving to him. But when he received the his own receipt therefor. But, in the duplicate slip he must be presumed to absence of any proof of fraud on the have known what the certifying of the part of the bank in inducing him to deposit in that form would reasonably receive or execute and deliver these indicate. That this would have been papers, or of any testimony tending the result of the entering of the de- to prove that their contents or effect posit upon such a slip and a deliv- was in any manner misrepresented to ery of a duplicate thereof to the him by any person, their force and depositor without anything excepting effect were not overcome by such the fact of such deposit having been proof. In our opinion a clear prewritten thereon is substantially con- ponderance of evidence was in supceded by the respondents; but it is port of the claim that the deposit was contended that the writing upon said a general one. This being so, the slip of the words, 'Security for sign- money did not come to the hands of ing bond to be held by bank,' showed the receiver as a trust fund." that the deposit was not to be treated
g. Miscellaneous deposits. as an ordinary general deposit. But to our mind these words, written In Star Cutter Co. v. Smith (1890) upon said slip, should be given little 37 Ill. App. 212, it appeared that a or no force in determining whether, check was left with a bank by a prinby the deposit, the bank became the cipal to protect a check drawn on the debtor or the trustee of the depositor. bank by one of its agents who did The only thing that these words not have any funds deposited to meet indicated was that, whatever the re- it. The bank refused to enter the lation between the depositor and the check on
a pass book, but merely bank on account of the deposit, such agreed to hold for the purpose inrelation had been assumed for the dicated, and gave a receipt therefor to that effect, also attaching a memo- the matter and the relation of the randum showing the purpose for
parties to the transaction to that which it was held. The check was specific and definite purpose, and no not sent forward for collection, but other. While, because of the lack of was held for nearly five months, when particular description of the Buckingit was put in the form of a certificate ham check intended to be covered, the of deposit. On the failure of the bank might be justified in applying bank it was held that the depositor the fund in payment of the first might recover the amount of the check Buckingham check for the amount in preference to the general creditors, of $1,000 presented, it having no as the transaction amounted to a de- notice that such was not the check posit for a special purpose, and did intended to be provided for, it is very not give rise to the relation of debtor clear that the bank could not legaland creditor which flowed from a gen- ly split up the fund and use it to eral deposit. The court said: “The discharge a Buckingham check for first question is whether said deposit a less amount. The fund was not was a special deposit by the Star in the bank for Buckingham's genCutter Company. That it was such eral account, and could not be dealt we think is clear. The clerk, Short, with in any other manner than as a was willing, it is true, to make a specified trust fund, to be applied to general deposit of the money to the the particular purpose for which credit of Buckingham, but the bank, only the bank consented to receive through its agent, refused to receive it." such deposit, but offered to take it In Carlson v. Kies (1913) 75 Wash. for the specific purpose of taking 171, 47 L.R.A.(N.S.) 317, 134 Pac. 808, up a check of Buckingham for $1,000, it appeared that an administrator and, on the clerk's agreeing to leave and attorney in fact, having certain it for that specific purpose, it was funds in his hands belonging to nonearmarked by an indorsement to
resident heirs, placed the money in identify it as being deposited and
bank and received a receipt therefor held for that purpose, and such mark
to the effect that the money was to ing or identification was attached to
be held until he could obtain the the fund when the money was drawn
proper vouchers from the heirs, when upon the check, and took the form of a
it was to be forwarded to them by certificate, and was retained upon it
comtill it came into the hands of the
The money was receiver, The object and intent of
mingled by the bank with its general placing the money in the bank was,
funds, and a few days thereafter so far as the Star Company was con
the bank failed. It was held that the cerned, to meet a particular check
transaction was in the nature of a which it was understood had been special deposit entitling the heirs to a used by its agent, and the bank was preference over the general creditors particular to confine its agency in
of the bank.
FRANK C. PANGBORN, Piff. in Err.,
Michigan Supreme Court - June 4, 1923.
(223 Mich. 181, 193 N. W. 817.) Highway - intersection road entering but not crossing another.
A street which enters another at right angles, but does not cross it, is an intersecting one within the meaning of a statute requiring one
operating a motor vehicle at the intersection of a public highway to pass to the right of the intersection when turning to the left, and it is immaterial that the improved traveled way rounds the corner.
[See note on this question beginning on page 488.]
ERROR to the Circuit Court for Kent County (Brown, J.) to review a judgment in favor of defendant in an action brought to recover damages for injury to plaintiff's automobile in a collision with defendant's truck. Reversed.
The facts are stated in the opinion of the court.
Messrs. Smedley, Linsey, & Shivel charge the jury that the place of the for plaintiff in error.
accident was an "intersection" of Messrs. George E. Nichols and
public highways, within the meanHoward A. Ellis for defendant in er
ing of the act, and that defendant
owed the duty of keeping to the Fellows, J., delivered the opinion
right of the intersection of the cenof the court:
ter of such highway. These rePlaintiff's automobile was injured by a collision with defendant's judge instructed the jury: “Under
quests were refused, and the trial truck on a highway officially known
the particular circumstances of this as M-13 and called the Mackinaw
case at this curve, I will take the trail. The collision occurred in the
responsibility of saying to the jury country at what is commonly called
that this is not the intersection of a three corners. Plaintiff was driv
highways. This road has in it a 90ing south toward the corner; de
degree curve, or a right-angled fendant's truck was coming east to
turn; but it is a continuous road so ward the corner. The corner is a
far as its improvement is concerned, right-angled one, and the east and
and so far as its use by the parties west road east of the corner is an
to this suit is concerned. If this ordinary dirt road. The north and
were a four corners, and one of south road does not go beyond the these parties had been going corner. Plaintiff counted in part on
straight east and the other straight defendant's failure to keep to the
south, and one of them had run inright of the intersection of the cen
to the other broadside, that would ter of the highway, upon the theory be an intersection of center lines of that these were intersecting high- highways in question; but that is ways within the meaning of the pro
not this case.
So at this parvisions of Act No. 9, Public Acts 1919. The testimony showed with
ticular point, so far as the law is out dispute that defendant's truck concerned, the only law of the road was on the left side of the road, kept
that is applicable here under all the to the inside of the curve until plain
circumstances of the case is the netiff was discovered, when an unsuc
cessity of each person to keep to the cessful attempt was made to avoid right of the center of the wrought the collision. The provision of the portion or traveled portion of the statute here involved is as follows: highway as the parties are meeting “And any person so operating any each other in the highway." motor vehicle shall, at the intersec- We think this instruction was ertion of a public highway, keep to the roneous. It is true that the Mackiright of the intersection of the cen- naw trail is a continuous improveter of such highway when turning to ment, but we think the right, and pass to the right of this three corners Highway-insuch intersection when turning to was an "intersec- entering but the left."
not crossing within the another.
tion" By appropriate requests plain meaning and intent tiff's counsel requested the court to of the act in question. While the