At the time this deposit was made and the check was drawn in favor of Bailey, no agreement had been entered into by the parties to receive Illinois bank bills in ordinary business transactions. Mor does the deposit or bank account of appellee with appellant show such an agreement. There seems to be no question, if suit had been instituted on the day the draft was drawn, that money alone would have discharged the liability. It was a general and not a special deposit, and when made, bank paper was but slightly depreciated. Up to that time it is not probable any difference was made between bank bills and money. This deposit was for dollars, and not marked as currency or bank bills. Subsequent to the 20th of April, 1861, when the draft was drawn, and the deposit was made, the deposit account distinguished between currency and specie. The drawing of the draft was an assignment of that sum on deposit, by the depositor to the payee of the draft. Bailey became entitled to sue upon the draft, and to recover the amount from the bank. Munn v. Burch, 25 Ill. 35.
This amount of the deposit having been, by appellees, appropriated to Bailey, and he or his assigns holding it at the time the agreement to receive Illinois bank bills during the continuance of the war, was entered into, they could not be affected by it. It also appears, that the check was not returned to appellees, until after the currency became so far depreciated, that the agreement was no longer regarded by the parties. Then did it return to appellees in the‘same condition in which it was held by Bailey and subsequent indorsees \ We can perceive nothing in the evidence, nor are we aware of any principle of law, that should change it from a draft for cash, to an instrument for bank bills worth no more than one-half of their nominal value. The mere change of ownership, by its return to appellees, could work no such change. When they took up the check the rights and liabilities of the parties were revived, as they were when the instrument was drawn.
The only remaining question to be considered is, whether, appellant is liable on the deposit made in the name of the insurance company. These institutions were not capable of forming a partnership, and the jury were so instructed. They no doubt could have made joint contracts, by which both bodies would have been liable. But in this case they are not jointly sued, nor does the evidence show a joint liability. The court below instructed the jury, that if they believed, from the evidence, that the bank was the real party in interest, and the insurance company was only its agent to carry on this business, they would be warranted in holding the bank liable. That a bank may employ agents in the course of their business, and that a banking institution may act as such agent, will not be controverted.
It is not material to the liability of the principal, that the business should be transacted in his name by the agent. The real question in such cases is, whether the relation of principal and agent existed in the transaction. It then follows, that if appellant was the principal, and the insurance company was only the agent, and the deposits were made with appellant, although in the name of the agent, the bank is liable. This question is one of fact, for the consideration of the jury, and was fairly presented by the instructions of the court, and they have found appellant liable. After a careful examination of the evidence, we are unable to say that the finding is not supported by the evidence. It may not be of such clear and satisfactory character as to leave no doubt, but we regard it sufficient to warrant the conclusion at which the jury have arrived. The judgment of the court below is affirmed.
Judgment affirmed.