Spain v. Beach & Son

McCay, Judge. 1. It is unquestionably true that under the authorities a deposit of money on general deposit in a bank is a loan to the bank by the depositor, and is not distinguishable by any clear mark from an ordinary loan of money by one man to another, payable on demand. But in this case the depositor was not the owner of the money. He had got it only a few hours before as the agent of the claimant; he held it as such agent, and it is clear from the testimony that he did not intend to appropriate it to his own use, but simply left it on deposit, temporarily, for convenience and safety. In other words, he-lent the money to the bank as the agent of the claimant, though he did not disclose to the bank that he was acting as such agent. In such cases, to-wit: where an agent makes a simple contract for the benefit of his principal, though he act-in his own name and do not disclose that he is acting as agent,either the principal or the agent may sue, even at law, on the contract: Code, 2197 and 2204. This doctrine is fully discussed in the case of Sims vs. Bond, 5 B. & Ad., 389, which case was, in some respects, very like this. The court there held that the principal could not sue, but it was put on the distinct ground that the depositor, who was one of a firm to which the money belonged, and who was dead at the time of bringing the suit by the survivor, did not appear to have been acting for the firm in making the deposit. He had a right to-apply the money to his own use, and nothing appeared to show that he did not so intend. So in the case of Tassel vs. Cooper, 9 C. B., 509. The deposit was evidently a conversion, and so intended. These cases, too, were both cases at law. The rule is far broader' in chancery. Equity looks to the truth of a case, and will follow a trust through all its windings, so long as it is possible to trace it: 2 Story E., section 1259. The case of Pennel vs. Deffel, 23 Eng. Law and [497] Equity, 460, was a case of a deposit by a trustee of trust funds in a bank to his own credit. The trustee had in bank other deposits of his own, and on the books of the bank there was-no distinction, yet the court held that the true owner could follow the fund. As each check, when paid, was a charge on the deposits in the order in which they were made, it was possible to tell, by comparing the dates of the deposits and the checks, whether or not the trust fund was still there. What one could do by filing a bill he may do here, by proceeding at law. This very question has been elaborately discussed in Pennsylvania. A case was read and relied on in the argument, to-wit: the case of Jackson vs. The Bank of the United States, 10 Barr., 61, which seems at first sight to be contrary to what we now hold. But, upon close inspection, it will be found that this is not true. That ease went on the ground of estoppel, to-wit: that the bank could not be permitted, after the summons of garnishment was served, to pay the money out to the depositor and then set up that the depositor was only an agent. The bank was estopped by its own books. The true owner was not a party to the litigation. Had he-been there, the court clearly intimated that they would have respected his rights. Subsequent cases in the same state, to-wit: Stair vs. York Nat. Bank, 5, P. F. Smith, 364; F. & M. Bank vs. King, 57 Penn., 206; Frazier vs. The Erie Bank, 8 Watts and Sergeant, 18, while they recognize the case in 10 Barr., 61, a good law, under its special facts, lay down the broad doctrine that if an agent deposit the money of his principal in bank in his own name, not disclosing his principal, the true owner may sue in his own name and recover it. In the last case, which was in its facts almost the counterpart of the case at bar, Judge Strong discusses the whole subject, and lays down the rule as we understand it. It may be fairly said, too, that the act of 1871, under which this proceeding is taken, seems to have almost, in terms, contemplated a case like the present. The language is “ property or money” : section 1. Again, section 3 says : “the claimant of any fund or pro [498] perty.” Again, section 2 : the garnishee shall “ pay” over, or deliver. But, independently of these expressions, which contemplate clearly something more than a special deposit, we ■think that under that provision of our Code which declares that a party shall not be compelled to go into equity, but may proceed at law if he think fit, we should apply the principles laid down in Pennel vs. Deffel, 23, E. L. & E. Reps. Same case, 4 DeG. M. & G., 389. Judge Strong, in the case in 57 Pennsylvania State Reports, says, finally : “Adeposit in a bank, then, does not change the property in trust funds deposited by a trustee. The trustee may become a creditor of the bank, but he holds the contract in trust, as he held the money before. It is not applicable to the payment of his debts to a general creditor, and a creditor who attaches the debts due from the bank to him can be in no better condition than the depositor. At most he becomes a statutory assignee of a naked legal right with the beneficial ownership in another.” And this, we think, is specially applicable to the general principles of our law, which recognizes, even at law, a perfect equity as the same thing as a legal right. 2. The act of 1871, under which this proceeding was had, has not been before this court for construction. It introduces a new method of proceeding, and not unnaturally there will arise, cases coming within its scope, when its provisions will be acknowledged, and when it will be the duty of the courts to administer its spirit rather than its letter. It is contended iff this ease that as there was no traverse of the garnishee’s answer, the plaintiff was entitled, by the terms of the claim-' ant’s bond, to a judgment for the full amount in the garnishee’s hands. According to the letter of the act, the claimant, in the first instance, is not required to make any affidavit. And if he does not do this, a traverse by him of the garnishee’s answer, if the garnishee admits he has effects, would seem to be necessary in order to get an issue. In this case the claimant made an affidavit when he filed his bond, which is certainly more in harmony with our claim laws. The garnishee states the facts. The truth is, he had nothing in [499] hand at the filing of the answer, since he had paid it out, as the law required him to do. The affidavit of the claimant was on file denying that the money in the garnishee’s hands was the property of the defendant. That was tendering an issue to any statement the garnishee'might make as to the title ■of the defendant. And section 3 of the act, which provides that the plaintiff shall have judgment against the claimant i( for any amount, or the value of any property, found in the hands of the garnishee liable to the operation of the said summons ” would seem to be the key to the whole matter, and to define more accurately the meaning of the condition of the bond. We think, therefore, that the affidavit of the claimant is a sufficient traverse of the garnishee’s answer, if it in fact need a traverse, only stating as it does the facts, without asserting who is the true owner. Substantially, the affidavit of the claimant makes an issue with the answer, and we hold that the court was not in error in refusing the judgment asked for against the claimant. 3. The letter of the act of 1871 does not provide for a claim where the claimant only asserts title to a part of the property in the hands of the garnishee. The language used implies that the garnishment is dissolved by the claim, in toto. But this is a very narrow construction. No violence is done to the language of the act to construe this word “ dissolve” to mean dissolve pro tanto. It is so obviously true, that the claimant may only claim a portion of the property, that we cannot think it giving full force to the law to limit it to a case where the claimant sets up title to the whole. The reason and spirit and evident purpose of the law will include the case of a claim to a part only of the property on money in the hands of the garnishee. There is no trouble in practice, either, in such a construction. What is unclaimed stands as it stood before. The defendant may dissolve under section 3540, or he may allow the garnishee to answer -without dissolving. In the former case, which is the case at bar, the remedy of the plaintiff is to proceed as to the balance, as though there had been no claim, to-wit: to enter up judgment against the defendant [500] and his security on the bond they gave to dissolve the garnishment, as to what remained in the garnishee’s hands after the pro tanto dissolution by the claimant. We think, therefore, the court erred in giving judgment against the claimant for this balance. Judgment affirmed in the first case, and reversed in the second.