Wholly aside from the views expressed in Brown v. UnionBanking Co., 274 Mich. 499, I find no trace of a public policy applicable here. There was no statute expressly prohibiting the transaction and which would be nullified if any semblance of recovery were permitted the plaintiff on any theory, as was the situation in Awotin v. Atlas Exchange National Bank of Chicago,295 U.S. 209 (55 Sup. Ct. 674), where there was a sale of bonds with agreement to repurchase in direct violation of the national banking law.
The Union Guardian Trust Company received an affirmative enrichment by the transaction, in the form of greater security for Harrah's obligations to it, and it would be grossly unjust to permit it to retain such advantage and repudiate the agreements by which it was obtained. In the Awotin Case no such condition appeared, the bank received no affirmative benefit in the form of a gain of assets, but, on the contrary, it assumed contingent liabilities. *Page 3
There was no statute expressly forbidding the agreement at bar. There is no public policy which permits persons or corporations to retain advantages and repudiate the obligations which produce them, except when the transaction is condemned as immoral or by positive statute and the only method of rendering the law effective is to leave the parties where they put themselves. Every banking statute does not raise a public policy which wholly condemns a transaction. If it were otherwise, then a customer who borrows more money than the bank is entitled to loan him would not need to pay his debt.
The case falls within Citizens Central Nat. Bank of New York v. Appleton, 216 U.S. 196 (30 Sup. Ct. 364), where, although in violation of the national banking law, a bank guaranteed payment of a customer's note at another bank where the loan from the latter was made to enable the customer to pay his note at the bank making the guaranty. The court recognized the invalidity of the contract as in violation of the statute but held that recovery could be had for money had and received, at least to the amount that the bank of guaranty had received from the loan.
Another distinction that could be made is that the transaction at bar was a single and isolated one, and could be approved under Ter Keurst v. First State Bank, 271 Mich., 259, which should be read in connection with Brown v. Union BankingCo., supra, in order to appreciate the distinction between general and isolated transactions.
As the direct enrichment of the Union Guardian Trust Company from the transaction was of value in excess of the amount involved in its agreement with plaintiff, plaintiff is entitled to judgment for the full amount thereof, with costs. *Page 4
NORTH, WIEST, POTTER, and CHANDLER, JJ., concurred with FEAD, C.J.