I dissent from the order denying a rehearing, not because I am convinced that the judgment of the *Page 210 district court of appeal is erroneous, but because the question involved is a new one in this state, upon which the authorities in other jurisdictions are not in harmony; and more particularly because the case is not, as stated in the opinion of the appellate court "simply that of a depositor desiring to have a portion of her deposit remitted to her at a distant place." The transaction was in fact of a radically different character. The certificate of deposit was not an ordinary certificate of deposit importing the ordinary relation between the bank and the holder of the certificate. Mrs. White did not make the deposit either by herself or an agent. Aitken Aitken had been her agents for the settlement of certain claims against her, but the money furnished them for that purpose had been deposited to their credit and they had become herdebtors for the balance remaining after deducting the amount of the claims paid and the value of their services. When an agent is accounting to his principal and paying over the balance due his principal he is not acting in the character of agent, but in that of a debtor paying his creditor — and such was the transaction here. Not only was that the real transaction, but it was precisely in the character of a debtor to Mrs. White that Mr. Aitken presented the matter to the bank. He made no pretense of agency. All he asked was that the bank should accommodate him by paying $847.50 of his money to Mrs. White at Tacoma. By drawing and delivering his check in favor of the bank on his account he gave the bank that amount of his money — and the agreement of the bank was that Mrs. White, a stranger to the transaction, should get the money. The failure to pay her was a violation of its agreement with Aiken Aiken, acting for themselves — not acting for her.
Whether this view of the case would alter the result I am not prepared to say, not having had the time to examine the numerous authorities cited in the opinion and briefs of counsel, but I am convinced that it would render inapplicable many of the authorities cited in the opinion as to the rights of the holder of an ordinary certificate of deposit.
In a case so novel and important, and so easily distinguishable from the ordinary transaction to which it has been likened, I think further consideration is due. *Page 211