Drover's National Bank of Union Stock Yards v. O'Hare

McAllister, J. It is a well settled principle that so long as money or property belonging to the principal, or the proceeds thereof, may be traced and distinguished in the hands of the agent or his representatives or assigns, the principal is entitled to recover it, unless it has been transferred for value without notice. Van Allen v. American National Bank, 52 N. Y. 1, and authorities there cited. When the proceeds of plaintiff’s property were deposited by his agents with the defendant, an “ ear mark ” was given to the funds, which clearly indicated that they wore impressed with a trust, and that plaintiff was the cestui que trust. The deposit was for transmission to the Henry Bank, at Mineral Point, Wisconsin, for the use of M. J. O’Hare, the rightful owner of the money, as the proceeds of his property converted into money. Under those circumstances, the defendant hank would have had no right to appropriate such proceeds by applying them to the payment of any debt the Henry Bank might he owing it. Baker v. New York Nat. Ex. Bank, Eastern Reporter, Vol. 2, p. 153, decided by the New York Court of Appeals, October 6, 1885. When the defendant attempted to transfer these funds to the Horthwestern Hational Bank, for, or by way of transmitting them to the said Henry Bank, it withheld all indications of the trust character impressed upon them in its hands, or that plaintiff was the real owner thereof, or anywise interested therein. We are of opinion that such a transfer, by the defendant, should not he held to operate as a discharge of the defendant as respects the proceeds of plaintiff’s property so received by the defendant, and impressed with a trust in favor of plaintiff. The rights of the latter, as it seems to us, were in no respect affected thereby. The defendant has, therefore, received money belonging to the plaintiff, which it must be deemed to have retained, against equity and good conscience. Privity of contract between defendant and plaintiff is not indispensable to a recovery in this action for money had and received. Eagle Bank v. Smith, 5 Conn. 71; Mason v. Waite, 17 Mass. 560; Hall v. Marston, Id. 575; Dickson v. Cunningham, Mart. & Yerg. 203. We think the evidence supports the judgment, and perceiving no error of law it will be affirmed. Affirmed.