dissenting:
I dissent from the opinion of the majority.
The obligation owed by the defendant bank to the plaintiff was to retain the monthly escrow monthly deposits until the tax for 1964 was ascertained and payable, and then to pay it. Should any surplus remain in the tax fund after this duty was performed the surplus was to be credited to the plaintiff’s mortgage account with the defendant bank. We know that the 1964 tax due on the plaintiff’s house amounted to $578.84, and that the bill for the tax was made out to Otis Vaughn, from whom the plaintiff took title in March, 1964, and in whose name the property stood on January 1, 1964. By reason of his veteran status, Otis Vaughn received a tax credit for $199.60 with his tax bill and tendered same to the defendant bank, at the same time requesting reimbursement for the amount of the tax credit. This the bank did. The plaintiff insists that the bank had no right to make this payment to the veteran Vaughn without his consent. I do not agree.
Whether or not the defendant bank discharges the tax claim against the plaintiff’s house by tendering the veteran’s tax credit plus an additional sum of $379.24 is of no concern to the plaintiff. If the city treasurer accepts the veteran’s tax credit in lieu of cash and the further sum of $379.24 the claim for the 1964 taxes on the plaintiff’s house will be discharged.
If the defendant bank erred in paying to *181the veteran, from whom the plaintiff purchased, the amount of the veteran’s tax credit, and if the treasurer of the City of Boston refuses to honor this credit, then the loss must fall on the defendant bank, which in addition to the $199.60 already advanced, will be obliged to pay out the full amount of the tax. There is no suggestion anywhere that should this contingency arise the loss occasioned by the payment to the veteran will be suffered by the plaintiff. It is pertinent to observe that the plaintiff does not claim to be entitled to the veteran’s credit by reason of his purchase. Whether the defendant bank acted properly in purchasing the veteran’s tax receipt for $199.60 is no concern of the plaintiff. It is sufficient to state that the matter is entirely outside the scope of the escrow agreement, and provides no basis for a recovery by the plaintiff. The transaction was strictly res inter alios. The bank is only accountable to the plaintiff for such sums as are in its hands after the taxes are paid. On this basis it does not appear that any such balance remains. I see no reason why the manner employed by the defendant to keep its agreement should provide the occasion for a windfall to the plaintiff. The agreement of the defendant to pay the plaintiff’s taxes when they became due was fully kept.
Paul A. Carbone of Boston for the Plaintiff. Frederick A. Hunt of Boston for the Defendant.