This case is decided by the majority of the members of the Court upon a question not presented by the pleadings. The facts recited in the opinion appeared in the evidence but did not constitute the case made by the bill of complaint.
The principle is too well settled and too generally accepted by the bar to be ignored that the complainant shall obtain the relief sought, if at all, upon the case made by his bill and not on the case made by the evidence however meritorious it may be. The allegata and probata must correspond, since however full and convincing may be the proof as to any essential fact, unless the fact is averred proof alone is insufficient and all the evidence offered in a case should correspond with the allegations and be confined to the issues. See Lyle v. Winn, 45 Fla. 419, 34 South. Rep. 158; Horne v. J. C. Turner Cypress Lumber Co., 55 Fla. 690, 45 South. Rep. 1016; Mitchell v. Mason, 65 Fla. 208, 61 South. Rep. 579; Goulding Fertilizer Co. v. Johnson, 65 Fla. 195, 61 South. Rep. 441; Pinney v. Pinney, 46 Fla. 559, text 571, 35 South. Rep. 95.
The case decided by the Court is an entirely different one from that made by the bill. The character of the preferential claim as decided by the Court is one where a bank takes a deposit of money or other valuable chattel for a specific purpose, the deposit does not lose its character, the relation between the depositor and the bank is not that of creditor and debtor, title to the deposit *Page 673 remains in the debtor and is not acquired by the bank which becomes the mere agent of the depositor for a specific purpose. That class of deposits was fully discussed by Mr. Chief Justice BUFORD in Tinsley v. Amos, 102 Fla. 1, 135 South. Rep. 397, and again by Mr. Justice DAVIS, in Myers v. Federal Reserve Bank of Atlanta, 101 Fla. 407, 134 South. Rep. 600. See also Myers v. Matusek, 98 Fla. 1126, 125 South. Rep. 360.
The case made by the bill was of a wholly different character, a trust was asserted ex maleficio. Both the original and amended bills rested upon the principle that when a bank takes a deposit when the bank is insolvent and such fact is known to the officers of the bank a trust ex maleficio is cast upon the bank of the money so received. That kind of case is illustrated by numerous authorities. See 7 C. J. 730.
In a recent case, the opinion in which was written by the author of the majority opinion in this case, the principle was recognized and discussed. See Garrett v. Tunnicliffe, filed Dec. 15, 1932, 107 Fla. 393, 145 So. 213. See also Wasson v. Hawkins, 59 Fed. Rep. 233; Hyland v. Roe,111 Wis. 361, 87 N.W. Rep. 252; Pennington v. Columbus Third Nat. Bank, 114 Va. 674, 77 S.E. Rep. 455; St. Louis and San Francisco R. Co. v. Johnson, 133 U.S. 566, 33 L.Ed. 683,10 Sup. Ct. Rep. 390; Am. Trust Sav. Bank v. Gueder P. Manuf'g Co., 150 Ill. 336, 37 N.E. Rep. 227; Orme v. Baker,74 Ohio St. 337, 78 N.E. Rep. 439; Willoughby v. Weinberger,15 Okla. 226, 79 Pac. Rep. 777; Fla. Bank Trust Co. v. Yaffey, 102 Fla. 723, 136 South. Rep. 399.
In the latter case the theory of the bill was that the bank was insolvent at the time it accepted the money of the complainants and was known to be insolvent by its officers especially its president, who was in active charge and management of the bank. The complainants urged *Page 674 the proposition that accepting the money under such circumstances amounted to a fraud upon them and they were entitled to rescind and impress a trust upon and demand back the money which they paid over.
The Chancellor allowed the preferred claim. The decree was affirmed by a divided court. Three Justices agreed that the allegations of the bill made out a case sufficient to have warranted the Chancellor in making the decree. Three Justices thought the petition was insufficient to warrant the relief prayed for under the principle of law announced, which principles of law were agreed to by all the justices.
The complainant in this case was Sears. It was alleged that the money, $2,480.00, was deposited by him in the Bank through Mr. Dickinson, his attorney. It is alleged in the bill that at the time of the deposit the Bank was hopelessly insolvent and the fact was known to the officers and directors of the Bank, that Sears was an innocent depositor, did not know of the Bank's insolvency and relied upon the implied representations of the Bank's officials that the Bank was solvent; that if he had known that the Bank was insolvent he would not have made the deposit, which was in cash.
No allegation of the bill justifies the assertion that the Bank undertook as Sears' agent to transmit the money to him. The deposit was made in the name of Dickinson Dickinson. One of that firm stated to the cashier when application was made to have the firm's check for $2,135.75 payable to Sears to be certified that he, Dickinson, was transmitting the money to Sears.
The bill was clearly framed on the principle announced in the Yaffey case, supra.
The claim as presented to the Liquidator was only for the amount of the check which was $2,123.75 but the assertion that it was a preferential claim was based upon the *Page 675 doctrine announced in the Yaffey case, supra. While the brief of complainant's counsel is upon the other theory of the case, that is that money was received by the bank to be transmitted to Sears by the Bank, no allegation of the bill supports such a theory.
I think however that the decree should be affirmed as the circumstances under which the deposit of money was received unquestionably imposed a trust upon the bank upon the principle that the receipt of deposits in such circumstances of known insolvency creates of the Bank a trustee for the benefit of the depositor.
BUFORD, C.J., concurs.