OPINION OF THE COURT.
MECHEM, J.--The court below held that the bank’s liability was fixed and limited by the memorandum above mentioned, and that as no abstract “approved by purchaser’s attorney” was presented to the bank on or prior to September 10th, that after said date “it became the duty of the bank to deliver the said check or its proceeds to O. C. Berry-man, one of the parties to the escrow agreement upon demand.”
Now, it is admitted that the bank was acting as agent for both parties as far as the escrow itself was concerned, and the question is, did the bank act as it should have acted, or' did it fail in its duty to either party?
1 Admitting the correctness of this holding for the sake of argument, the question then is, did the bank fulfill its duty to the appellants as fixed by the memorandum? To this question-we think the reply should be in the nega- . tive, for the reason that nowhere in the memorandum was the bank authorized to make any delivery of any paper, money or anything.
Had the appellants both agreed that Mr. Berryman should have his money or check back, then the bank would have been relieved from any liability, but it owed just as much duty to the appellants as it did to Berryman, and should not have taken sides, and when it failed to secure appellant’s consent, it should have held the escrow and let the parties either come to some agreement among themselves or appeal to the courts, when the appellee could.have interpleaded the money into court 'and secured its acquittance.
However, it took sides in this matter and will be held as it should be, to have acted at its peril and to be responsible to appellants for the fund if they can show a right to the same under the contract made with Berryman, either in its original form or as amended^y the parties to it.
The law governing .the duties' of the bank in this case is well stated by Page in his work on contracts. '
'“The depository of an escrow is regarded as an agent of both obligor and obligee, and he can neither return the deed or other instrument to the former without the latter’s consent, nor save upon the fulfilment of the agreed conditions deliver it to the latter without the former’s consent.” 2 Page Contracts 585.
There happened no condition, as set forth in the memorandum, upon the fulfillment of which, or failure to fulfill, the bank was directed to return the papers to either party.
We do not deem it necessary upon this appeal to decide any of the other questions raised by the brief of appellants, except that the appellees will be held to be responsible to the appellant if -they, upon a re-trial of this cause, shall sustain a right to the money the bank had belonging to Berryman and paid over to him in violation of its dutv •to appellants.
The judgment of the lower court is reversed and remanded with instructions to reinstate the cause and proceed 'in accordance with the views expressed in this opinion.