Wagner v. Spaeth

Kimball, Justice. A petition for rehearing has been filed. Former opinion, 254 Pac. 123. *2 Complaint is made that authorities cited in respondent’s brief on the former hearing were not commented upon in our opinion. We did not comment on those authorities because we thought none of them in point on any question that arose under the facts in the case. And the brief in support of the petition for rehearing does not make specific mention of any overlooked authority that is considered by counsel to be contrary to any principle announced in our opinion. Some authorities that seemed to us to support contentions that were or might have been made by respondent in support of the judgment, like McMullen v. People’s etc. Ass’n., 57 Minn. 33, 58 N. W. 820, and Virginia-Carolina Chemical Co. v. Steen, 99 Miss. 504, 55 So. 47, 34 L. R. A. (N. S.) 734, were cited and commented on in our opinion, but we did not find those authorities in respondent’s brief. The principal contention in support of the petition for a rehearing is that we were wrong in applying to this case the conceded general rule that a bank to which a note is sent for collection and remittance becomes the agent of the owner or holder to receive payment. It is again argued that the mortgage note and release were sent to the state bank for “remittance” only, and not for “collection and remittance. ’ ’ In the brief it is said that there is a recognized distinction between an agency for collection and remittance, and one for remittance only, and that this is evident from what is said in Cosmopolitan Trust Co. v. Leonard Watch Co., 249 Mass. 14, 24; 143 N. W. 827, a case cited in our opinion. While, no doubt, there is such a distinction, we do not think it is evident from anything said in the cited case, nor from any other case mentioned by either counsel. We are at a loss to understand how the plaintiff in the case at bar could have hoped to derive a benefit by virtue of the distinction. If the note were sent to the state bank for .collection and remittance, the result on questions of agency and payment was explained in our former opinion. The bank *3 did not bold tbe money as agent for tbe plaintiff unless and until there was some aet applying tbe money upon tbe note, wbicb in this ease was February 27. 254 Pac. 126. But plaintiff persists in taking tbe position that tbe papers were sent to tbe state bank for tbe purpose of remittance only. That implies that tbe state bank bad made tbe collection, and was bolding tbe money for tbe plaintiff wben the note and mortgage were sent by plaintiff to tbe bank. As stated in tbe brief on tbe petition for rehearing, “tbe only thing left for tbe state bank was to remit, it already bad collected.” Tbe state bank, having already collected, according to this contention, was bolding tbe money for remittance to plaintiff, and as it has been conceded all along that tbe bank was plaintiff’s agent for that purpose, tbe plaintiff should stand tbe loss occasioned by tbe bank’s failure to remit. In this view of tbe case, our remark in tbe former opinion, that from February 9 to February 27, tbe state bank held the money for tbe mortgagor or tbe land bank, would have to be withdrawn, and tbe transactions of February 27 would be immaterial. In acting on tbe petition for rehearing we feel bound to accept tbe theory that tbe plaintiff continues to urge. Under that theory, we are clearly of opinion that it was plaintiff’s money that was lost by tbe bank while acting as plaintiff’s agent. It is unnecessary to decide whether, if tbe note and mortgage bad been sent for collection and remittance, tbe plaintiff might not be entitled to a new trial for tbe purpose of affording him an opportunity of showing that tbe money to pay tbe mortgagor’s check was not in the bank on February 27. Rehearing denied,. Blume, C. J., and Potter, J., concur.