(concurring):
I concur with Mr.. Justice Miller in the reversal of this judgment. The complaint states two causes of action. His opinion relates to the first.
This cause of action seems to be based upon the claim that the church trustees, the plaintiff’s assignor, was the owner of a check for $2,500, drawn by the Congregational Church Building Society upon the Mercantile Trust Company of the City of New York to the order of the church trustees, and that they had deposited this check with the California Safe Deposit and Trust Company of San Francisco, Cal., for collection; that the California Trust Company had forwarded such check to the defendant for collection; that on October 30, 1901, the defendant collected on said check from the Mercantile Trust Company, the drawee thereof, the sum of $2,500, on which same day the California Trust Company was put in charge of a receiver on the ground of insolvency; that the defendant had not remitted the proceeds of the check to the' California Trust Company or its representatives or to the trustees of the church, and that the trustees of the church had assigned then- claim against the defendant to the plaintiff. -
The crucial question presented is whether the defendant became in consequence of this transaction the debtor of the trust company or the debtor of the trustees of the church. Assuming that the check was received by the trust company from the trustees of the church under an arrangement by which the title to the check did not vest in the trust company upon deposit, it was authorized to collect the check and when actually collected by it or its agent the proceeds of the check became the property of the trust company and the trust com-' *404pany then became indebted to the trustees of the church for the amount called for by the check. In pursuance of this arrangement the trust company forwarded the check to the defendant and assuming that it was received by the defendant for collection it proceeded promptly to collect the check. On the morning that it received the check .by mail it was presented to the drawee and paid and the defendant received at once the proceeds* The check had thus been actually collected and the proceeds received' by the defendant as the agent of the California Trust Company and credited to its account. The transaction was completed, the check collected, and the California Trust Company had actually received the proceeds by defendant’s crediting its account therewith. The proceeds, therefore, became the property of the defendant who became indebted to the California Trust Company and the California Trust Company became indebted to the trustees of the church for the amount. If the defendant had failed after three o’clock on October thirtieth there could have been no question but what the California Trust Company would have been responsible to the plaintiff for the amount that had been collected by the defendant, its agent; but after the money had been actually received and credited to the California Trust Company and after the close of business, on that day the California Trust Company failed. That failure, as I understand’ it, could not at all affect the relation of the church trustees, the California'Trust Company or the defendant to this Sum- of money thus collected. The money had become the money of the defendant. For that the defendant was responsible to the California Trust Company and the California Trust Company was responsible to the church trustees. Upon no theory can it be said that the trustees had any claim against the defendant to recover either- the check or its proceeds.
The second cause of action was based upon a check drawn by a bank in Texas on a bank in Few York, to the order of one Neal for $500, which was subsequently indorsed and delivered to one Simon, This check was, on October 29, 1907, deposited by Simon with the California Trust Company for collection, the trust company giving a receipt that it had “received for collection from I. Simon check on National Park Bank of *405New York, $5d0.” The California Trust Company forwarded this $500 draft to the defendant in a letter dated October 29, 1907, which stated that the check was sent for collection. This check was received by the defendant on the 4th of November, 1907, after the California Trust Company had suspended payment and was in the hands of a receiver, and on November 4, 1907, the defendant collected the check and received the proceeds;
The crucial difference between this claim and the claim for the $2,500 check embraced in the first cause of action arises from the fact that' it was received by the trust company specifically for collection; was forwarded to' the defendant specifically for collection; and was not collected until after the trust company had faffed. Neither the trust company nor the defendant ever acquired title to the check and when the money was received by the defendant it was received on account of the owner of the check, namely, Simon, and the defendant with notice of that fact before it had changed its condition in any way was clearly responsible to Simon as the owner of the check for the amount that it had collected. Simon remained the owner of the check, the defendant had received the proceeds of the check, the California Trust Company having failed before it had received such proceeds, the defendant was responsible, not to it, but to the real owner of the check, and the defendant is, therefore, responsible to the plaintiff in this action for its proceeds which it had collected.
It appears, therefore, from the undisputed facts- that the plaintiff was not entitled to recover for the $2,500 check but was entitled to recover for the $500 check, and unless the plaintiff wishes to reduce the judgment to the sum of $500 and interest, there must be a new trial.
Clarke, Soott, Miller and Dowling, JJ., concurred.
Judgment and order reversed and a new trial ordered, with costs to appellant to abide event.