Former opinion sustained February 1, 1927. ON REHEARING. (251 P. 62.) The able briefs submitted on rehearing have convinced the writer that, as to some phases of this most difficult and intricate case, he may have been "seeing through a glass darkly." It is nevertheless believed that a proper conclusion was reached in the original opinion. We are not convinced by the greater weight of testimony that the defendant bank participated in a breach of trust as alleged. The bank no doubt knew that Demas had a certain interest in the fund derived from sale of the lambs, but, as stated by Paul Pollman, the cashier, "The money *Page 483 was in his fund. We didn't know what his business dealings with the other people were, or what they owed him." It is true Demas testified he had a full settlement with Spiropolis in June, 1918, but his testimony is so uncertain and contradictory concerning this matter that it has little weight. Spiropolis contradicts him by asserting that Demas, in 1919, was still indebted to him. The conduct of Demas, after having acquired knowledge of the bank's alleged misappropriation of his money, is utterly inconsistent with a bona fide claim of liability. As stated in the former opinion, he continued to borrow money from the bank, as evidenced by several notes, and payment was made without asserting any claim against it. Furthermore, we have his solemn, written declaration that the bank does not owe him anything. This statement was not obtained through fraud or duress. He should not complain if the court believes what he says is true. We conclude that Spiropolis was authorized so to distribute this fund. Demas did not decide to bring action against the bank until after his cousin, Spiropolis, became bankrupt. In view of all the facts and circumstances, we are not prepared to say that the bank acted otherwise than in good faith.
We adhere to original opinion affirming decree of lower court.
FORMER OPINION SUSTAINED.
RAND, J., did not participate in this decision. *Page 484