Brown v. Citizens' State Bank, Ltd.

STEWART, J.,

Concurring Specially. — I concur in the conclusion reached by Chief Justice Sullivan that the judgment in this ease should be affirmed. The action, as I view it, is to recover upon the receipt and contract made by O. E. Cannon, cashier of the Citizens’ State Bank, Ltd. By the provisions of that receipt, Cannon, as cashier of the bank, received from Brown, one of the respondents, the sum of $1,500 as part payment upon the purchase of a water right *724to certain land, nnder a contract entered into between Brown and the Great Western Beet Sugar Company. The lands are described in this receipt and contract, and it is stated that it is understood that Mrs. Adolph Aus had filed upon the same as a desert land entry, and that Mrs. Aus was to deposit with the cashier of the Citizens’ State Bank the desert land receipt to be issued to her by the United States land office at Boise, .Idaho, covering said entry, and upon the fifteenth day after the date of such desert land entry receipt, she was to turn over to Cannon, cashier of the Citizens’ State Bank, her assignment properly executed conveying the said entry and the rights thereunder to Brown or Estabrook,. respondents. Cannon, as such cashier, then agrees that he will write to the register of the United States land office to ascertain if the entry and assignment are regular and will be recognized by said land office,- and upon receipt of a favorable reply to that effect, will send to Brown by registered letter the above-mentioned land office receipt and assignment, and at that time he agrees to pay over to the Great Western Beet Sugar Company, or its order, the said sum of $1,500. It was further agreed in such receipt and contract that Brown, within fifteen days after the date of the contract, to wit, February 12, 1908, would send to Cannon, the cashier of said bank, his promissory note, signed also by Estabrook, for the sum of $1,700, due and payable to the said Great Western Beet Sugar Company on or before February 12,01909, which note was to be surrendered to the Grea# Western Beet Sugar Company at the time the $1,500 in cash was turned over, or when the validity of the entry and assignment of the desert land entry had been proven to the satisfaction of Cannon; and that the Great Western Beet Sugar Company was to place in the bank in escrow a deed covering the above water right which was to be surrendered to Brown when the note was paid. Under this contract, the $1,500 in cash was to be paid to the Great Western Beet Sugar Company upon Mrs. Aus making an assignment of her desert land entry and the approval of the same by the land office and its transmission to Brown,, and the note *725was to be surrendered to tbe Great Western Beet Sugar Company at the same time.

It is conceded in this case that Mrs. Aus never had a desert land entry upon said tract, and that she never made any assignment of her entry to Brown, and that the same was never approved by the land office and never transmitted to Brown; and under the terms of this contract Cannon had no authority and was not authorized to surrender or pay to the Great Western Beet Sugar Company the $1,500 deposited with him as cashier of said bank, or turn over the note also deposited. Under the facts of this case, Cannon acted for the bank and had no authority to pay out the money or turn over the note, and did so at the risk of the bank, and the bank is liable to the plaintiffs for whatever damages they may have sustained by reason of the breach of this contract. As between the bank and these plaintiffs, the bank had no right to attempt to substitute other conditions and provisions, and force the plaintiffs to accept the same, although not provided for in said contract, and for these reasons, in my opinion, the judgment should be affirmed.