DISSENTING OPINION. I am compelled to dissent for the following reasons:
There are but two kinds of bank deposits — special and general. A special account is one that is made for a special purpose, and is the result of a special undertaking, and such a deposit creates the relationship of trustee or bailee on the part of the bank of such fund. On the other hand, a general deposit creates the relationship of debtor and creditor between the bank and the depositor. It, therefore, follows that a special deposit is adeposit in a specific sum for a specific purpose. (Our italics.)City National Bank of Auburn v. Brink (1934),98 Ind. App. 275, 187 N.E. 689.
Where a general deposit is made it is credited to the depositor's account, and is subject to a check issued by him, or such deposit is evidenced by a certificate on time or demand. (Our italics.) The title to such deposit is vested in the bank and it becomes debtor of the depositor. When a bank takes a special deposit the relationship of trustee for the depositor comes into existence.
Where the money deposited is to be used for a specificallydesignated purpose it is frequently referred to and known as a "special deposit." 31 A.L.R. 472 annotation. (Our italics.) *Page 190
"The law prescribes no particular formula for the contract involved in making a special deposit. Like all contracts it grows out of a mutual intention and understanding of the parties. The purpose and terms of the deposit may be explicitly stated, or the intention of the parties may be inferred from their declarations, considered in connection with their conduct and all the circumstances." 3 R.C.L. 517.
The deposit herein shows on its face that the $1,530.00 was to be used for the sole and specific purpose of purchasing for Mrs. Bonham 4th Liberty Loan bonds and no authority, direct or implied, was given to the bank to use the money for any other purpose. This amount could not be checked against in the ordinary course of business nor could any part of it be withdrawn without first breaking the contract. It was the obvious intention of the parties that the money so deposited was to be used for the specific purpose of buying the bonds. What if the purpose for which this fund had been deposited had been carried out, that is, the bonds purchased for Mrs. Bonham and while the bonds were in the possession of the bank, pending delivery to Mrs. Bonham, the bank went into the hands of a receiver, could it then be said that as to these bonds there existed no trust?
Since I am of the opinion that this is a trust fund there is no need to trace the funds in accordance with the recent opinions of this court since chapter 167 of the Acts of 1931 makes it unnecessary.
Further appellant's claim alleges that he is entitled to a preferred claim as to the $1,530.00 less $153.00, being the ten per cent. paid by the receiver, leaving $1,377.00 plus interest of $32.13 and entitled to a general claim as to the $180.00 plus interest, making a total of $191.40. Appellee's general denial put in issue only those facts which the plaintiff had alleged in his claim *Page 191 and which he must prove in order to establish his case. The evidence discloses that the appellant proved the allegations of his claim and the general finding indicates that the court considered the so-called waiver as binding although the admission, in evidence, of the so-called waiver, if it was such a waiver, is of no avail, as a plea of waiver is a plea of confession and avoidance and must be specially pleaded. Such waiver must be pleaded by the party relying on it, and is not open as a defense under a general denial. Evans v. The QueenIns. Co. (1892), 5 Ind. App. 199, 31 N.E. 843; Nashua RiverPaper Co. v. Lindsay (1922), 242 Mass. 206, 135 N.E. 358. A mere general denial does not authorize the introduction of evidence in support of any new matter. 49 C.J., section 1183, page 800, and cases there cited.
There is no showing that appellee moved to have the answer amended so as to include the pleas of waiver and estoppel. Proof without allegation is as impotent as allegation without proof.Tatum v. Commercial Bank Trust Co. (1915), 193 Ala. 20, 69 So. 508; Newton County v. Ellis (1926), (Tex.), 285 S.W. 691. Only such facts as can be proven under the issues are properly before a court.
Appellee contends that because appellant's decedent accepted ten per cent. of this $1,530.00 under said so-called waiver that he, as her representative, is estopped from claiming that this $1,530.00 is a trust fund. Estoppel must be especially pleaded so that the question may be put in issue and the defense of estoppel is not available under a general denial. Town of St. John v.Gerlach (1926), 197 Ind. 289, 150 N.E. 771; Webb v. JohnHancock Mut. Life Ins. Co. (1904), 162 Ind. 616, 69 N.E. 1006, 66 L.R.A. 632. *Page 192