I concur with Mr. Justice Scott that this judgment should be reversed and the complaint dismissed on the ground that there was no enforcible contract made between the Carnegie Trust Company and the plaintiff, and no money of the plaintiff was ever received by the Carnegie Trust Company. The plaintiff at the time of the transaction in question was known as the Van Norden Trust Company, its name having been subsequently changed to the Madison Trust Company. At all the times in which the transaction upon which this claim is founded took place, one William J. Cummins was a director and a member of the executive committee of the Carnegie Trust Company, and was also a director of the Van Norden Trust Company. One Van Norden had been the president of the Van Norden Trust Company, but had resigned and Watkins Crockett had been elected president in his place. Van Norden had obtained loans from various banking corporations and deposited as collateral security therefor stock of the Van Norden Trust Company, and two other banks known, as the Twelfth Ward Bank and the Nineteenth Ward Bank, which also seem to have been controlled by Cummins and his associates. These loans had been called, and it seems to have been assumed by Cummins that if the loans were not paid and the stock of these institutions were sold, it would in some way injure the standing of the Van Norden Trust Company. With all this the Carnegie Trust Company had nothing to do, and so far as appears was not at all interested. One Eeichmann was president of the Carnegie Trust Company, and also a director in the Van Norden Trust Company. On April 19, 1910, there was a meeting of the directors of the Van Norden Trust Company. There were present at that meeting Watkins Crockett, chairman; Shoemaker, Martin, Jr., Mclivaine, Cummins, Condon, Eeichmann, Moore, Jr., and Baumann. Cummins made a statement at that meeting *28that he had requested the plaintiff trust company to make to Mr. Moore, Mr. Condon and Mr. Beichmaün unsecured loans, but that Mr. Martin had opposed the making of such loans and they had now abandoned that request; that they had asked for loans because they had learned that the Van Nordens, father and son, had various loans at various banking institutions, part of the collateral of which loans was stock of the Twelfth Ward Bank and the Nineteenth Ward Bank; that the Van Nordens were unable to pay the loans, which were being called, and the Van Nordens would go into bankruptcy; that their bankruptcy would injuriously affect the Van Norden Trust Company; that Cummins, Condon, Beichmann and Moore desired to purchase from the Van Nordens these stocks of the Twelfth and Nineteenth Ward Banks, and in that way supply the Van Nordens with money with which to pay these loans and keep the Van Nordens out of bankruptcy; they proposed that these loans be secured loans to be accomplished through the medium of a trustee, and that a paper appointing a trustee be drawn; that to the trustee be paid the proceeds of these loans that were to be made, and that the trustee should, out of the proceeds of the loan, purchase the stocks, which stocks would be collateral to the loan; that they proposed this trustee for the protection of the Van Norden Trust Company. This proposition appears to have been approved and verified by Beichmann and other directors. There was then a discussion as to who should be appointed trustee. Two members of the board present declined to act as trustee, and further discussion resulted in the passage of the following resolution:
“ That the following application for demand loans at 6% are hereby approved, subject to the approval of the officers:
“Martin J. Condon........................ $75,000
“ J. B. Reichmann......................... 60,000
“ Charles A. Moore, Jr..................... 60,000
“ George D. Crabbs........................ 60,000.”
Up to this time the Carnegie Trust Company had had nothing to do with the transaction. Crockett, who had been vice-president of the Van Norden Trust Company, was on the nineteenth of April elected president. He testified that on the twenty-*29first of April Arthur Moore and Cummins came up to the trust company with a letter and two notes, the Reichmann and Moore notes for $60,000 each. These two notes were mentioned in the resolution to which attention has been called, and the letter which they presented to the president of the trust company was the letter upon which this claim is based. That letter was addressed to Crockett as president of the Van Nor-den Trust Company. It acknowledged receipt from the Van Norden Trust Company of $195,000, the proceeds of the following notes: two of $60,000 and one of $75,000; that the amount was to be used by “us” towards the payment of the Carnegie Trust Company stock at $175, Nineteenth Ward Bank at $250, and Twelfth Ward Bank at $100; that “we agree to hold in trust for you, or any trustees named by you, the above col-laterals as paid for by us at prices mentioned above. Whatever part of the above amount is not employed in the purchase of the above stocks shall be subject to your order at any time. Yours very truly, R. L. Smith, Vice-president.”
Crockett says that when this letter and notes were presented he told Cummins that it was not in accordance with the understanding of the meeting; that Cummins said that it was the understanding between him and Mr. Martin; that this agreement was entered into with him and Mr. Martin; whereupon Crockett directed the cashier to draw these checks. He put the checks in an envelope and returned it to Mr. Cummins. The following day a note of Condon’s for $75,000 was presented, and to that he gave a check for that amount. These checks were drawn to the order of the Carnegie Trust Company.
Mr. George C. Cummins, a brother of William J. Cummins, was called as a witness by the defendant. He testified that he was an assistant of W. J. Cummins in his personal affairs and had no connection with the Carnegie Trust Company; that he dictated this letter of Smith to the plaintiff’s president; that he dictated it after a conversation with Crockett over the telephone; that Crockett told him there were going to be some notes sent up and that Mr. Martin and he had talked the matter over, and they wanted a letter written, addressed to him as president of the Van Norden Trust Company, and that in *30consequence of that conversation he dictated the letter in question; that after he dictated it he took it to Mr. Smith, who signed it, and he returned to his office; that after he dictated the letter, and Smith had signed it, he took the letter and the Moore and Reichmann notes and went to the Van Nor den Trust Company to see Crockett; that he was accompanied by Moore, the maker of one of the notes; that he gave this envelope to Crockett, who took the papers from it, and shortly after brought hack two checks; that he brought the checks back to Cummins’ office and delivered the checks to a Mr. Ball. Smith, who signed this letter, testified that he was vice-president of the Carnegie Trust Company; that he signed this letter addressed to Crockett; that Cummins brought him the letter, and he signed it without knowledge of its contents, and did not see the letter again until January 7, 1911; that he could not say whether it was George Cummins or W. J. Cummins who brought him the letter; that he had never discussed signing the letter with the president of the hank or with any one else; that the matter was never called to the attention of the board of directors or the executive committee; that he never received any communication or letter from the Van Nor den Trust Company in any way relating to the purchase of this stock; that he signed the indorsement on the back of these three checks, two for $60,000 and one for $75,000, on the instruction of Eeichmann, who was then president of the Carnegie Trust Company; that when he indorsed the check Eeichmann instructed him to indorse these two checks over to Charles Arthur Moore, as these checks represented the proceeds of the notes that should have gone to the credit of Charles Arthur Moore, the proceeds of Ms individual note, and this was a matter that Mr. Moore, Mr. Condon, Mr. Cummins and Mr. Eeichmann had arranged with the uptown banks; that he then indorsed them over to the account of Moore on this instruction; that the president directed him to indorse the $75,000 check to Cummins. The checks were then taken by Cummins and Moore, deposited to their own private account with the Carnegie Trust Company, and they appropriated the proceeds.
Now from this statement it seems to me perfectly plain that the Carnegie Trust Company had nothing to do with this trans*31action; that it was an individual transaction between Cummins, Moore and Reichmann and the Van Norden Trust Company; that no agreement was ever made by the Carnegie Trust Company to act as trustee for the Van Norden Trust Company; and that the Carnegie Trust Company never actually received the money represented by these checks. The checks themselves and the money that they represented were simply stolen from the Van Norden Trust Company before they ever reached the Carnegie Trust Company. Of course, the real fact is that Cummins dominated both trust companies, and this was a device of his to steal this money, in which he was successful. He had no power-to make any contract on behalf of the Carnegie Trust Company, or to bind it by any agreement to act as trustee or in any other capacity. The officers of both companies seem to have been his willing tools to aid him in stealing this money, and nothing in this transaction justifies a judgment in favor of the Van Norden Trust Company against the Carnegie Trust Company either as for money had and received —for it received no money—or under any agreement or trust.
I think, therefore, that there was no cause of action of any kind proved against the Carnegie Trust Company; that no trust relation of any kind was established; that no liability existed; and I, therefore, concur in the reversal of this judgment and the dismissal of the complaint.
The findings of fact and conclusions of law should, therefore, be reversed, and findings prepared in accordance with the views hereinbefore expressed.
Judgment modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.