The complaint fails to aver, and the evidence to show, that there was due demand made on the bank for payment after the deposit of $104 was transferred to the account of Mr. Randall, in correction or error in the first deposit to the account of Prickett, paid out of the Randall-Adams special fund. The requisite conditions precedent to a collection against a bank for funds on general deposit in such bank, and subject to withdrawal, were discussed in First National Bank of Montgomery v. williams, 206 Ala. 394, 90 So. 340; McCreless v. Tenn. Valley Bank (Ala. Sup.) 94 So. 722;1 Tobias v. Josiah Morris Co., 126 Ala. 535, 28 So. 517.
A special deposit in a bank, or moneys for a specific purpose, remains the property of the depositor, or the beneficiary of the special deposit, as the case may be, until the terms of such deposit or escrow have been complied with, or until such terms have been modified by the parties at interest. Jones v. First National Bank, 206 Ala. 203, 89 So. 437; First National Bank v. Hall, 119 Ala. 64, 24 So. 526; First National Bank v. Henry, 159 Ala. 367, 49 So. 97; Hutchinson v. National Bank of Commerce, 145 Ala. 196, 41 So. 143.
The preponderance of the evidence was such as to plainly and palpably show that the judgment is wrong. Cobb v. Malone,92 Ala. 630. 9 south. 738. The evidence shows without dispute that the $225 was in fact borrowed from the bank by Mr. Adams on note given by him and Mr. Randall for $235. The proceeds were deposited in said bank to the credit of the makers of the note for a specific purpose — to pay a certain and designated draft to "Dr. Slaughter for a house-moving outfit." No part of such funds, under the law of such deposit, could be diverted or applied by the bank, without consent of Adams and Randall, to a different use or purpose. An erroneous or temporary diversion of the same by one of the officials or agents of the bank was not binding on it in such sense as that it could not recharge the same to the "mistaken depositor's account," and credit that amount to the true or special deposit account. McCreless v. Tenn. Valley Bank, supra. There was no question of the right of a bona fide third person in the moneys thus surcharged by the bank.
The original draft or check left with the bank for collection by J.B. Prickett was drawn in his favor by P.O. Randall, and by error paid, or reported as paid, by the misappropriation of a part of the proceeds of the special deposit in question. In the act of the attempt at collection of Prickett's check by the bank, the bank was the agent of the payee, the plaintiff, and any error made by such agent in such attempt at collection must be visited upon Prickett as the principal in such action. The correction as to plaintiff's account was made in due course and according to the justice of the circumstances.
If the court erred in overruling demurrer to the complaint, it is immaterial, since there was error in rendering judgment against the defendant.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
1 208 Ala. 414.