— This is an action to recover $1,000, with interest thereon, alleged to have been deposited in the appellant bank to the credit of the respondent. The following, among other facts, appear in the record:
On the twelfth day of June, 1900, the respondent, Thomas W. Jones, entered into a contract with John N. Ward for the sale of said Ward of the Republic and the Republic No. 2 mining claims, situated about three miles from Elk city, Idaho county, for the sum of $15,000, payments to be made as follows: $3,000 on or before April 1, 1901; $3,000 on or before November 1, 1901; $3,000 on or before February 1, 1902; $6,000 on or before the seventh day of June, 1902; and promissory notes were executed in the usual form of negotiable notes, with interest at the rate of seven per cent per annum, payable semi-annually. Ward, the second party to said contract, agreed to do certain work on said mining claims and erect certain machinery thereon and a mill in connection therewith. It is not necessary for a decision of this case to set out the full terms of said agreement. It appears that said Ward proceeded and complied with the said agreement up to a certain date, and the mill erected thereon was destroyed by fire; and thereafter a supplementary agreement was made between said parties whereby they stipulated that in case $9,000 were paid as specified in said contract, the sum was to be taken as a full and complete discharge and satisfaction of all de*96mands that said Jones had against Ward arising out of the transaction referred to in said contract.
It was provided, among other things, in said supplementary contract that if the payment of said sum of $9,000 ($2,000 of which had been p.aid on the day of execution of the contract, leaving a balance of $7,000 not paid at the time specified), then the promissory notes and other documents executed in connection therewith which had been deposited with the Lewis-ton National Bank in escrow were to be delivered as follows: The deed deposited in escrow was to be delivered to J. N. Ward, or his agent; the notes of $15,000, or the mortgages securing the payment thereof, were to be delivered to Thomas W. Jones, or his authorized agent, and was to be of full effect except as to the payments made thereon. And it was provided that the execution of said supplementary agreement did not affect the liability of Ward to Jones to the full extent of $15,000, unless the $9,000 referred to were paid at the time and in the manner specified. All payments thereon were to be made to the Lewiston National Bank, deposited there to the credit of Caleb Brinton as attorney in fact of said Jones. It was expressly stipulated that time was of the essence of said agreement, except that if the performance of any act required under this agreement was prevented at the time specified therein, by either (1) the act of God; (2) the elements; or (3) unavoidable delay in the transmission of the money called for or any part thereof, or of the machinery and necessary appurtenances to erect and operate the mill called for therein. That such matters so happening should operate to excuse the nonperformance of such agreement, for the period of five days only.
It appears that when the note of $3,000 due November 1, 1901, became due, payment was not made; that on November 15, 1901, the Bank of California wired the Lewiston National Bank as follows: “San Francisco, November 15, 1901. Lewiston National Bank, Lewiston, Idaho. Alamance Mining Company has deposited with us, for your credit, for use of Caleb Brinton, one thousand dollars.” Said dispatch was received by the Lewiston National Bank at 4:50 o’clock P. M., which *97was after banking hours. Before the books of the First National Bank were written up on the 16th, and before any credit of said sum was made, and on November 16, 1901, at 11:40 o’clock A. M., a telegram was received by the Lewiston National Bank ordering the credit of said $1,000 canceled, and no credit was entered on the books of the First National Bank in favor of said Brinton or Jones. In the telegram directing the cancellation of said credit the Bank of California requested the First National Bank of Lewiston to wire it if the request was complied with, and the bank ot Lewiston wired them immediately that the request had been complied with. The question arises on the above-stated facts as to whether the appellant bank is liable. There has been considerable controversy as shown by the record and briefs of counsel of the relations existing between the various parties, and especially Ward and the Alamance Mining Company. But we think it is sufficiently shown by the record that the Alamance Mining Company was the assignee of the contract between'Ward and Jones, and we think that the record clearly shows that the Lewiston National Bank sustained the relation to the parties of the holder of the escrow agreement and other papers executed in connection with said transaction.
It further appears that neither the Alamance Mining Company nor Ward paid said $3,000 note when it became due on the 1st of November, 1901. Time was made of the essence of the contract. In ease such payments were not made as stipulated, the deed of said property was to be delivered to Ward or his agent, and the promissory notes and other papers were to be delivered to Jones or his agent. That being true, the escrow holder had no authority to receive any payments after such time had transpired without the consent of both parties; that point, however, we do not consider vital to this case.
It clearly appears from the record that the secretary of said mining company made the deposit of said $1,000 on the 15th of November, 1901, with the Bank of California, and requested it to wire the Bank of Lewiston to that effect. That wire was received by the bank at Lewiston, after banking hours, and *98the next morning before the credit had been entered on the books of the bank, the Bank of California requested the bank at Lewiston not to give said credit, and the bank at Lewiston immediately wired back that the request was granted.
It appears from the record that soon after the secretary of said mining company had made such deposit with the Bank of California the president of said company and one of the directors ascertained that said deposit had been made without their knowledge or consent, and at once went to the Bank of California and requested to withdraw said deposit, as we think they had a right to do. And Brinton, the attorney in fact for Jones, had not been informed of the receipt of said telegram and no one had incurred any loss or damage or had assumed any new rights or liabilities because of the first telegram above referred to. And we are of the opinion that .the Bank of California, or through it, the Alamance Mining Company had the right to countermand said orders for credit before any rights or liabilities had been incurred or losses sustained in consequence of it, by either Brinton as attorney in fact or any third parties. (See Second Nat. Bank of Baltimore v. Western Nat. Bank, 51 Md. 128, 34 Am. Rep. 300.)
The First National Bank of Lewiston received no money from the Bank of California. The above-stated facts show how the transaction occurred; that it was impossible to transmit the money itself from San Francisco to Lewiston in the space of time that occurred between the two telegrams, and even if it had actually received the money and the depositor had appeared and requested that the instructed credit be not given, before any rights or liabilities or losses had been sustained by anyone in consequence of it, they would have the right to recall the credit. The judgment of the court below is reversed and the cause remanded with instructions to enter judgment in favor of the appellant. Costs are awarded to the appellant.
Stoekslager, C. J., concurs. Ailshie, J., did not sit on the hearing of this case and took no' part in the decision thereof.