I concur in the result but not in the conclusion that the complaint alleges facts showing that the defendant bank sustained the relation of a trustee to plaintiff. A bank may be a trustee of its assets for the benefit of its stockholders, depositors, and creditors and be under obligation to make loans of its funds only to third persons who are able to repay the loans and interest, but it is not a trustee of the borrower. Often officers of a bank and the bank's customers are on most friendly terms and the former may frequently advise with the latter as to where or how to make investments, but who would think of holding the bank responsible as trustee of such customer and liable to him as such for poor or mistaken advice of its officers. Efficient and competent bankers do not lend money on mere friendship, and when an old customer fails for any reason to meet his unsecured loans when due, such bankers should and will take necessary steps to prevent any loss on account thereof either by legal process or by obtaining voluntary security. If plaintiff had not secured his overdue notes by a mortgage, the defendant could have sued him and attached his property, foreclosed the lien, and realized its debt much quicker than it did. No question of friendship or trusteeship would have been involved.
The facts alleged do not show any fiduciary relation between plaintiff and defendant bank but a relation of *Page 51 creditor and debtor, who became such under circumstances that preclude the bank from acting as trustee either in the making of loan or in securing it by mortgage after default in payments.
These principles of law seem to me to be so just and elementary as not to need citation. Under the rule announced, bankers and managers of banking institutions cannot afford to be very friendly with their borrowing customers lest thereby they constitute their employers the trustee of the borrower, accountable to the latter for any excess of value of pledged or mortgaged property over the debts secured when and if the debtor says that was the understanding or that the security was given only to satisfy the bank examiner and not to be foreclosed according to its terms.