McDonald v. American National Bank

MR. JUSTICE PIGOTT 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 — 485 — one Nimmo and one Mitchell, of Glasgow, Scotland, to and for the use of the plaintiffs. The plaintiff McDonald alleges in his complaint that the defendant so received for his use $19,230, and the plaintiff Cooney alleges in his complaint that the defendant so received $10,000 for his use. On these averments issues were joined and the causes tried by the court sitting without a jury. McDonald recovered a judgment for $17,942.15, and Cooney recovered a judgment for $11,543.25. From each judgment and from the several orders denying new trials the defendant has appealed. 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 — 486 — Miller for the unpaid purchase price of Cooney’s interest in the mines. On the 7th day of August, 1896, Miller entered into a contract with Nimmo and Mitchell, who resided in Scotland, by which he agreed to sell either to them or to a corporation or joint stock company to be organized by them, and they for themselves and such corporation or joint stock company agreed to purchase from him, the Diamond Hill gold mines. The sixth and seventh paragraphs of the contract are as follows r “Sixth. It is further understood and agreed that a loan of fifteen thousand' pounds at the same rate of interest as that of the debenture stock is to be made to said John S. Miller by said company when it is organized. As security for this loan, said Miller is to hand over to and pledge with said company, to- be-registered as it may direct, twenty thousand pounds of preference shares and twenty thousand pounds of ordinary shares' of said company; and said Nicholas N Cleary is to hand over to and pledge with said company ten thousand pounds of such preference shares. * * * Seventh. It is further understood and agreed that the second cash payment of five thousand pounds and the loan of fifteen thousand pounds are not to be-paid directly to said John S. Miller, hut are to be forwarded at the time stipulated herein therefor to the said American National Bank of Helena, Montana, to be applied by the said bank in paying off and discharging such attachments* liens, encumbrances, claims, and demand's as may then exist against said, properties, and in paying off and discharging such moneys as may then be owing from said John S. Miller to John B. Wilson, Thomas D. Cooney, and Angus A. McDonald ’for the unpaid purchase price of said properties, and only the surplus, if any,, after the payment of such claims, is to- he paid to said John S. Miller, and clauses marked ‘third’ and ‘sixth’ of this agreement-are hereby modified so as to conform to- this clause.” The-plaintiffs knew nothing'of the terms or conditions of this contract. Pursuant to- the covenant of the contract in that behalf,, a corporation or joint stock company, by name the Diamond Hill Gold Mines, Limited, was organized, and to this company — 487 — Miller was to transfer tlie properety upon payment of the specified purchase price. In accordance with the provisions of the seventh paragraph of the contract the company transmitted by draft to the bank twenty thousand pounds, the equivalent of $96,800 in currency of the United States. On September 28, 1896, the defendant bank received and accepted the remittance from the company. Accompanying the draft was a copy of the contract and the attention of the cashier was called to the seventh paragraph which contained the authority and directions with respect to the application and disposition- of the funds. In receiving and accepting the draft and in all matters connected with the proceeds thereof the defendant acted through its cashier, one A. C. Johnson. Before the bank -received the draft and between the 24th and 28th days of September, 1896, an agreement was made between Miller and the plaintiffs whereby the latter consented that the bank should pay to McDonald $15,000 and to Cooney $7,000 instead of $30,000 and $17,000, the remainder of the purchase prices due to them respectively, and that they would, in lieu of cash, accept Miller’s notes for $15,000 and $10,000 for the remainder, the notes to be paid out of the nest installment received from the Scottish purchasers. Miller had assured the plaintiffs that he was to receive a further payment of $100,000 within thirty days after September 28, and this statement of Miller was corroborated by the defendant’s cashier. The plaintiffs knew the amount of the draft received by the bank. The bank was orally advised by Miller, McDonald and Cooney of the agreement that out of the $96,800 then held by the bank, McDonald and Cooney should receive $15,000 and $7,000, respectively, and no more. Pursuant to the agreement between them and Miller the plaintiffs on the 28th day of September, 1896, delivered to the bank written orders stating how much of the funds were to be paid to them. The order of McDonald instructed the bank to deliver to Miller the deeds in escrow upon his paying into the bank to McDonald’s credit the sum of $15,000 and leaving with the bank his note in McDonald’s favor for $15,000 payable — 488 — in sixty days after date, the bant to retain out of the next payment from the Scottish purchasers an amount sufficient to liquidate the.'note; the order from Cooney authorized the bank to surrender to Miller the notes then in the bank’s custody upon Miller’s depositing to Cooney’s credit $7,000 and his note to Cooney for $10,000 due at thirty days. Upon Miller’s cheques therefor the bank paid these sums to the plaintiffs, and disbursed in payments to other persons, including the bank itself, the remainder of the $96,800 — all upon Miller’s cheques, the money having been deposited to the credit of Miller. Neither McDonald nor Cooney was informed of the contents of the clause quoted, and not until December, 1897, about fifteen months after the transactions to which reference has just been made, did the plaintiffs learn that if they had not otherwise agreed with Miller they could have been paid in full out of the $96,800 remitted from Scotland, and that the written instructions touching the disposition of the funds directed that the plaintiffs be paid in full. No further remittance came from Scotland to the defendant bank and, the notes of September 28, 1896, not having been paid (except $250 on the note to Cooney) these actions were commenced. 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. — 489 — The ultimate question is: Did the defendant receive from Nimmo and Mitchell, or the Diamond Hill Gold Mines, Limited, money to and for the use of the plaintiffs, — in other words, did the bank have in its custody or possession moneys or funds received from Nimmo and Mitchell or the company, to which, as against -the bank, the plaintiffs were entitled ? Counsel for the plaintiffs invoke the provisions of Title VIII of Part IV of Division III of the Civil Code, entitled “Trusts,” insisting that the bank received and held the money sued for as a trust fund belonging to the plaintiffs, that Nimmo and Mitchell were the trustors of a voluntary trust, the defendant the trustee, and the plaintiffs the beneficiaries, and that the duty devolved upon the trustee to disclose to the beneficiaries the contents of the seventh paragraph of the contract between Nimmo and Mitchell and Miller. They call to their aid also Section 2103 of the Civil Code, which provides that “a contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it;” and this, they argue, conferred upon the plaintiffs the right to maintain the actions, even if a technical trust did not exist. 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 — 490 — and not from any design to benefit the plaintiffs, nor in fulfillment of any duty or obligation to them. Nor these reasons, from these motives, and for the accomplishment of these ends, the Diamond Hill Gold Mines, Limited, sent to the defendant bank the remittance of $96,800, and directed it not to pay out any part of the funds to Miller except such as might remain after making the specific payment “of such moneys as may then be owing from said John S. Miller to John B. Wilson, Thomas D. Cooney and Angus A. McDonald for the unpaid purchase price of said properties.” The defendant bank accepted this remittance or deposit subject to the terms and conditions thus lawfully imposed. It had no interest in the funds and no authority concerning them except such as were conferred by the directions of those who had conditionally deposited them subject to- specific instructions. 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 — 491 — in performance of duties owing by tbe Scottish purchasers to their vendor. The contract pursuant to which this special deposit was made, having been entered into between Nimmo and Mitchell on the one part, and Miller on the other, manifestly was completely under their control, and could have been modified or annulled by their joint action at any time before other persons in some way parted with value or altered their rights in reliance upon its provisions. During the time the contract thus made remained revocable and under the control of the parties to it, obviously the plaintiffs acquired no rights under it, and even after the deposit had been made with the bank in fulfillment of the agreement we think there can be no doubt of the right of the parties to it by joint action to cancel the agreement, recall the deposit, and successfully demand of the bank the return to them of the funds. 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 — 492 — tions could have been changed by the parties to the contract under the terms of which the deposit was made; but the restrictions and directions were not changed and therefore the bank had no- authority to make any payments out of the funds other than those directed to be made by the seventh paragraph of the contx*act. It must be x’emembered that the funds belonged to the parties (or, to speak more accurately, to the Diamond Hill Gold Mines, Limited, as general owner, Miller having a special interest) to the written contx’act containing the limitations upon the bank’s powers, and hence these limitations must be understood to be limitations of the bank’s authority as between the bank and the depositing owners. The bank had powers concerning the funds because the depositors conferred it, and that power was limited because the depositors limited it; any violation of the limitations would have been a violation of the duty the bank owed to the owners of the funds. If the funds were not disposed of as dii'ected by the owners and depositors, they may complain of such a violation of their directions and such a misapplication of their funds; but so long as the funds remained subject to the control or even to the recall of the depositing ownex*s, it cannot coiTectly be said that the bank owed to other pex’sons a duty concerning the funds. Its authority and justification for paying any part of the funds to the plaintiffs must be found in the dix’ections of the depositing owners; if it failed to make any payments directed by them it has disobeyed their instructions and if they were injured thex'eby a liability to them may have arisen. .If, on the other hand, the bank has made payxnents which were not authorized by the depositors, it might find difficulty in legally accounting for the funds intrusted to- it by claiming credit for such unauthorized disbursements. The bank received on deposit from the Scottish purchasers a large sum of money with instructions to pay therefrom whatever amounts were owing from Miller to the plaintiffs for the unpaid purchase price of certain mining claims. To one of the plaintiffs the bank paid $15,000 and to the other $7,000. These payments were expressly authorized, — 493 — bnt they did not exhaust the bank’s power; it was authorized and directed by the depositors to make further payments to the plaintiffs, but it failed to obey the direction. The contention is that the bank not only had authority to make further payments to the plaintiffs, but that its duty was to exercise the authority and make guch payments; that, by the acceptance of the deposit upon the terms expressed in the contract the bank impliedly promised the parties thereto that it would malee to the plaintiffs all the payments authorized, and that such promise is enforceable by the plaintiffs as one made for their benefit. 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 — 494 — of those under whose authority the bank was holding the money, plainly the bank could not properly have continued to act under the revoked power previously conferred. 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 — 495 — may be thus illustrated: Au executed contract does not require .a consideration to support it. For example, a gift consummated is an executed contract. But a contract of gift the'subject of which is not delivered is without consideration — a mere nudum pactum — and therefore not enforceable by the donee. The provisions of section 2103 do not embrace gifts not perfected or other executory contracts lacking consideration. It should seem to be manifest that the legislature did not intend to declare that an executory contract in which there is a promise to make a gift to or to- confer a gratuity upon a third person may be enforced by hiin. To come within the meaning and scope of the section, the (executory) contract made expressly for the benefit of a third person must be one whereby the promisor undertakes to pay or discharge some debt or duty which the promisee owes to the third person, — in other words, the third person must sustain such a relation to the contracting parties that a consideration may be deemed to have passed from him to the promisee which -raises the implication- of a promise from the promisor directly to himself., There must be a consideration passing from the third person by virtue of which he may assert the existence of a promise in his favor. We do not attempt to interpret the section further than the facts in this case seem to require. The evidence does not indicate to any extent whatever that the contract between Nimmo and Mitchell and Miller was made expressly for the benefit of the plaintiffs, however much they might have been incidentally benefited by the performance of all of its terms. There is nothing tending to show that either Nimmo- and Mitchell (who contracted with Miller) or the Diamond Hill Gold Mines, Limited! (which remitted the funds pursuant to the contract) owed any duty to the plaintiffs or intended to create a trust for their benefit. On the contrary, the provision of the contract as to payments was entirely for the benefit and protection of the parties to it and their successors, created no rights in persons not parties to it, and was revocable at pleasure by those who had (at least so far as the plaintiffs are concerned) voluntarily entered into it. — 496 — 'We do not assent to the doctrine that such a special deposit subject to recall, or such revocable directions for the payment of money, creates implied contract obligations towards the persons to whom the payments were directed to be made. 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.