I concur in the opinion of the majority that the petitioner, S.A. Howard, deposited in the Ripley Savings Bank and Trust Company a sum of $2,500 and that he did not loan the amount to the Partee Insurance Agency.
I do not concur in the opinion that the petitioner is judicially estopped to make his claim against the Bank by reason of his claim in the Bankruptcy Court against the estates of Partee, Majors and Stewart.
In the case of State v. Ripley Sav. Bank Trust Company,25 Tenn. App. 490, 160 S.W.2d 189, opinion by Judge Ketchum, arising out of the same bank failure, the president, Partee, drew certain unauthorized checks on depositor's accounts and appropriated the proceeds. In the opinion it is said at page 193 of 160 S.W.2d:
"The bank has received the benefit of the fraud of its three executive officers in this transaction; and by retaining the benefit of their fraud, it must be held to have ratified their acts, and to be chargeable with their knowledge of their fraudulent conduct.
"We think the chancellor was in error in holding that their knowledge of the fraud in the issuance and cashing of this check would not be imputed to the bank." *Page 404
In the instant case Partee, Majors and Stewart, acting as agents of the Bank, stole from this ignorant old man $2,500 and the Bank still holds the benefits of that theft.
In other words the Bank charged Mrs. Kennedy's account with the $2,500 check given to Howard, and did not credit Howard's account with any amount. As testified by Mr. Hurt, the liquidating agent, the Bank was, by this means, relieved of a liability of $2,500.
I do not think the cases cited in the majority opinion apply to the facts in this case, nor that the Supreme Court in any of the opinions cited intended that a plea of judicial estoppel should be allowed to the beneficiary of a theft.
In this situation, I think the Bank comes into court with unclean hands and is itself estopped from making such a plea.
In Corpus Juris Secundum, Vol. 31, p. 281, under the head of Estoppel, section 75, it is said:
"The doctrine of estoppel is for the protection of innocent persons, and only the innocent may invoke it. There is, in the very nature of the doctrine, some element of the maxim that one must come into a court of equity with clean hands. It is essential that the party claiming the benefit of the estoppel should have proceeded in good faith. A person may not predicate an estoppel in his favor on, or assert such estoppel for the purpose of making effective, obtaining the benefit of, or shielding himself from the results of, his own fraud, violation of law, wrongful act, or other inequitable conduct in the transaction in question; and the same is true of a fraudulent plan which he designed and an attempt to defraud in which he was an active participant."
I think the decree of the Chancery Court should be reversed and a judgment rendered in favor of the petitioner. *Page 405