dissenting. The relative structure of the facts requires me to disagree with the judgment of reversal. While I am constrained to agree with the interpretation rendered regarding R. C. 1311.04, I do not necessarily concur that the absence of mandatory language therein alleviates a mortgagee from any responsibility to its borrower as demonstrated in this case. My dissent concerns itself with the relationship between the mortgagors (Cottrills) and the mortgagee (Dollar Federal Savings & Loan Association). The record clearly indicates that when the loan transaction was reduced to writing that document contained a charge variously labeled “Construction Fee” or “Construction Loan Fee.” Depending on where it appears in the record, the purpose of this “Construction Fee” varies frequently, even in its description by the same witness.
However, the exhibits show, in writing, that prior to each disbursement, except the first, Mr. Langdon, the branch manager of the Fairfield Office of Dollar Federal, executed an “Inspection Report” containing, among other information, the name of the contractor, the work completed to that date, and the percentage of the loan ready for advancement. The first disbursement of $5,000 was on the authority of one Robert Duley, whose identity remains a mystery, but whose report authorized a 10 percent advancement, or approximately $3,850, considerably less than the $5,000 paid. On each of the disbursements, the builder, *117who would contact the bank, not the mortgagors, requested a specific amount and then either more or less than that amount would be paid after Mr. Langdon made his inspection. The checks, while made payable to the Cottrills, bore in three instances the special indorsement, “Pay to the order of Taylor and Associates” — the builder, who received the checks from Dollar Federal and took them to the Cott-rills for their signatures.
It would appear that the “Construction Fee” was paid to the bank for the purpose of representing the borrowers ’ interests when disbursing the loaned funds. Dollar Federal was in the business of making construction loans and was theoretically skilled, as well as schooled, in the procedure and had an obligation to use its expertise in protecting the Cottrills’ interests. It is impossible for this writer to conceive of the relationship between Cottrills and Dollar Federal as other than that of principal to agent.
In the ease of Bollinger v. Livingston State Bank & Trust Co. (La. App. 1966), 187 So. 2d 784, the court, at page 787, said:
£ < * * * Unquestionably, the bank owed plaintiff a duty in this case. The legal relations existing between plaintiff and the bank were created by the delivery of the collateral mortgage note * * * to the bank and by the bank’s undertaking to advance money and supervise construction as to quality and quantity as the agent of plaintiff. The duty which the bank owed was that of a fiduciary and agent, for this is the nature of the relationship created between them.”
1 Mechem on Agency (2d Ed.), Section 1233, at page 904, states:
“* * * jn practically every case wherein the principal has suffered loss, the principal may sustain an action of tort against the agent based upon the latter’s breach of duty.”
It has been argued that the ease of Falls Lumber Co. v. Heman (1961), 114 Ohio App. 262, does not apply to the case at bar. However, the following language therein seems particularly appropriate: “A savings association i§ *118liable in an action of tort for any loss suffered by tbe mortgagor which is- proximately caused by the failure on the part of the savings association to exercise ordinary care in an agency undertaken to disburse funds of the mortgagors.”
The facts in this case disclose that all draws were initiated by the builder and were made after the mortgagee’s inspections. Though the checks were payable to the mortgagors they were delivered to the builder, three of the four checks in question with a special indorsement to the builder, but all of which were taken by the builder to the mortgagors, for their signatures.
It can be argued that the mortgagors did not have to sign the checks. However, they did, and they did so on their reliance of the mortgagee’s skill in protecting their interests. After all, Dollar Federal was not rendering its services gratuitously.
While the case of Speights v. Arkansas Sav. & Loan Assn. (1965), 239 Ark. 587, 393 S. W. 2d 228, may be distinguished by the manner in which the agency relationship was created between the mortgagor and mortgagee, it bears a striking similarity to the case at bar. In that case too, the builder absconded, but the court, at page 591, held the savings and loan association which controlled the distribution of the money liable for not using “reasonable diligence or care to protect the interest” of the mortgagors.
If the only way the Cottrills’ interests could have been protected, was by way of the procedure outlined in R. 0. 1311.04, then the mortgagee should have, in the exercise of due care, availed itself of that statute
CoRRioak, J., concurs in the foregoing dissenting opinion.