The pertinent and controlling question arising under the pleadings and the evidence is that of whether or not the appellee is entitled to recover of the bank the particular bonds, or their value, delivered by him to W. H. Jones on June 24, 1920. That depends, first, upon the construction of the paper signed by W. H. Jones, in view of the circumstances under which it was given. The paper is an agreement collateral to the subscription paper signed by the appellee and other persons. It does not purport to change or alter in any wise the terms of the subscription paper. It evidences the purpose and intention to impose a proviso or condition upon the present possession of the bonds at the time they were turned over to W. H. Jones. The bonds were to be returned to appellee "on or before July 15, 1920," in case "the full amount of the $120.000 and the 100 per cent. assessment of the $50,000 capital stock is not subscribed and paid in full, in cash or Liberty bonds, on or before July 10, 1920." Clearly the appellee was not intending at that time to deliver over the bonds to W. H. Jones for the board or committee of the bank in satisfaction of or compliance with the subscription. The appellee intended to retain the title and the possession of the bonds until the prescribed proviso or condition was fully met, and then, at the date mentioned, to have same applied in satisfaction of the compliance with the subscription paper signed by him. The bonds were not to be paid over in satisfaction of his undertaking in the subscription paper before or unless the prescribed condition was fully met by the date mentioned. And it was intended to have W. H. Jones retain the bonds and not part with the control of the same until the proviso or condition under which such bonds came into his possession was fully complied with by the date mentioned. The parties were dealing entirely with the present and temporary possession of the bonds, and the custody and control of the same up to the date of July 10, 1920. Such being the nature and extent of the agreement, it, in effect, constituted W. H. Jones a mere holder of the bonds, as an agent of the appellee for the purpose, although W. H. Jones described himself as trustee. He was not authorized to enter into such undertaking in behalf of the committee or the bank as beneficiary of the subscription paper. He was a mere trustee, and not a general agent, of the bank committee, to collect and receive the subscriptions agreed to be paid by the subscribers to the subscription paper. Appellee was fully aware of the authority of W. H. Jones. Acts done outside of such special authority were alone upon his individual responsibility. As a mere trustee he could not render the committee or the bank as beneficiary liable to a third person by such agreement as is shown. In parting with the control of the bonds before the date mentioned W. H. Jones, and not the bank committee or the bank, would be responsible to appellee for any loss or hurt occasioned by the act. And the evidence does not show that at the date W. H. Jones turned over the particular bonds to the bank committee or the bank examiner the bank committee or the bank examiner had notice of the particular paper signed by W. H. Jones. As far as the evidence goes to show, the bank committee and the bank examiner, in good faith, took and received the bonds from W. H. Jones in virtue of the subscription agreement signed by appellee.
On the faith and reliance of these bonds and the other subscriptions the bank examiner, on July 13, 1920, notified the Comptroller of Currency that the required funds were raised to reopen and operate the bank. The bank then was authorized to formally open for business on July 15, 1920; which it did. If the bank or the committee knew of appellee's claim in virtue of the agreement with W. H. Jones it was after the bank was permitted to formally reopen and operate. At that time the bank was not in a position to legally lessen the fund provided under consent of the Comptroller of Currency as a legal requisite to reopen and operate the bank. At the time it was permitted to reopen the bank it had received all such fund, including appellee's subscription, in good faith and without notice of any outstanding proviso or condition. And the evidence properly considered goes to show that the proviso or condition in the Jones' agreement had been complied with, that the stockholders' assessment and the $120,000 subscription had been paid in cash or Liberty bonds by July 10, 1920. The bank examiner's testimony affirmatively shows that such amounts in cash and bonds were actually delivered over to him; he being in charge of the bank at the time. Therefore, in the circumstances, the appellee is not shown to have a cause of action against the bank.
But assume that the appellee has shown a liability against the Farmers' National Bank, in assumpsit for taking and receiving the benefits of the bonds: The Security State Bank or the state banking commissioner would not be liable in the circumstances. First, as far as shown by the evidence, the *Page 866 Security State Bank did not receive or come into possession of the particular bonds of appellee. At least the evidence does not tend to show such fact sufficiently to predicate a judicial finding that it did receive the bonds. The Farmers' National Bank at the time it reopened on July 15, 1920, had more than $90,000 in bonds, and the bonds transferred to the Security State Bank on June 1, 1921, amounted to "$85,667.60." It is a matter of conjecture that the appellee's bonds were among the $85,667.60. Appellee himself says: "I could not say that the Security State Bank received the bonds." The burden of proof was upon the appellee. Second, the judgment of the trial court, as recited, seems to be founded upon the fact of the Security State Bank's having assumed to pay the obligations of the Farmers' National Bank. In that respect it cannot be said in the record that the Security State Bank did assume to pay the claim of appellee as an existing obligation or otherwise of the Farmers' National Bank. According to the terms of the undertaking and the orders of the federal judge in respect thereto, no character of obligation such as the appellee asserts against the Farmers' National Bank was included or intended to be included. The appellee's claim was in suit at the time, and was not "a deposit" or a claim on "its books" or "a debt" admitted or recognized by the Farmers' National Bank or its receiver. The terms of the undertaking, approved by order of the federal judge, expressly excludes all "suits now pending in the courts."
Therefore we have concluded that the judgment, so far as it pertains to the appellants the Security State Bank and the state banking commissioner, should be reversed, and that judgment should be here rendered in favor of such appellants. It is accordingly so ordered. The appellee, S. P. Sansing, to pay costs of appeal and costs incurred by said appellants in the trial court. The judgment as to the other defendants will remain undisturbed; they not having appealed therefrom.
Affirmed in part, and reversed and rendered in part.