It seems to me that we are reversing upon a mere issue of fact when there is much if not a predominant amount of evidence in support of the decision below. Plaintiff by her letter of February 15, 1926, directed that the collection from Luecken be placed "in the bank as my account." Mr. Kimpel, then its president, handled the matter for the bank and construed plaintiff's instructions to be "to deposit the money for her account." The money was collected March 20 and the deed delivered. The transaction as between plaintiff and the bank rests in correspondence. March 20, upon making the collection, Mr. Kimpel wrote plaintiff stating that some taxes were due and would have to be deducted from plaintiff's money and that he would "deposit the balance, $1,122.49, to your account as per his instructions."
While plaintiff is not much versed in business affairs, this was not her first experience as a depositor. She had previously had a checking account with this very bank. She understood the operation *Page 587 of a deposit and the resulting credit to the depositor. In a letter of April 2 to Mr. Kimpel, when she was trying to escape the Luecken transaction, she sent in a check for $200 directing that from its proceeds Luecken be reimbursed for what he had "already spent" and then stating, "place the balance to my credit." Then again on April 12 she wrote Mr. Kimpel protesting somewhat against having any delinquent taxes charged to her and stating in conclusion: "You will remember when I mailed the deed * * * placing it in the bank as I agreed with Mr. Luecken with no other obligation and he was to deposit $1,200.00." On April 19, and this is important only as showing the construction which Mr. Kimpel put upon the transaction, he wrote plaintiff sending her the two certificates of deposit. Doubtless the bank was anxious to retain the money; but if there is any issue of fact here, I should suppose that the finding on it below would be controlling. Mr. Kimpel's explanation is, and there is nothing to contradict it — it is the one he made to plaintiff — "Mr. Luecken did not say whether you wanted it all on twelve months time or not, but in order that you will have the benefit of time, we have executed one of these Certificates for six months and one for twelve." Admittedly, plaintiff did not expect or intend to use the money deposited by Luecken on March 20 until some time in April.
It seems to me wholly immaterial that the bank was not authorized to issue certificates of deposit. The point is that both plaintiff and the bank intended there should be a deposit, and so it was immaterial that the depositor intended it to be subject to check and the bank supposed it to be on time. Both intended and the result remained a mere general credit to plaintiff and not a trust obligation to her. The collection was not made for any purpose, general or special, other than for the general credit of plaintiff. If that is so, the decision below was right and should be affirmed. *Page 588