(after stating the facts).— When this case Avas first argued before us we arrived at the conclusion that the judgment of the lower court should be affirmed. A motion for rehearing having been filed, we sustained that and the case has been re-argued and elaborately briefed by counsel. On full and careful reconsideration, we have arrived at the conclusion that our first determination of the case was erroneous.
*629If it is true that Salmon & Salmon were acting as the agents of the plaintiffs in the transaction and were authorized by them to send on the notes, collect the money on them and pay it over to them, then the theory so earnestly and ably advanced by counsel for respondents, that as bailees of any character or as agents for the plaintiffs, Salmon & Salmon could not deal with the papers in any way by which they could throw title to them out of plaintiffs or invest any person with any right under them, is correct. In a case of that kind Salmon & Salmon or their manager, Casey, would have been guilty of a tortious conversion, and any person receiving any benefit thereunder would be equally liable for the value of the securities converted, or responsible, as was claimed in this case by the petition in it, for money had and received. Such third party would be held to respond to the plaintiffs as for money had and received to their use and for their benefit. It was on this theory of the case that we all agreed in the affirmance of it when it was first presented to us. It was presented to us by appellants on the theory that the defendant was protected by dealing with commercial paper in the ordinary course of business. We declined to agree to that. That question does not arise and is unnecessary to be determined in the light of the case as disclosed by a more careful examination of the testimony in the case, particularly that of the plaintiff, Cooper, himself. He testifies in the most positive and unequivocal manner that Salmon & Salmon were treated with by him and recognized by him, not as his agents, but as the agents of the Missouri Savings Association, the very parties to whom the notes were payable and the very parties who were entitled to the possession of them and who were bound to pay them if they accepted and retained possession thereof. It was argued before us at the bar and is repeated in the very able briefs presented by the learned and industrious counsel for the respondents that the statement of *630Cooper, when on the witness stand, that he considered Salmon & Salmon the agents of the Missouri Savings Association, was a mere inadvertent statement and that he did not mean to so testify. If that is so, it is very unfortunate for these plaintiffs. This court is bound by the record that he himself has made by his own testimony. He has testified in the most unequivocal manner that he delivered these papers, or mailed them, more correctly, to Salmon & Salmon, considering and treating the latter as representatives and agents of the Missouri Savings Association, and not as his agents. In point of fact a careful consideration of the testimony confirms this and demonstrates that the Missouri Savings Association itself, as well as Casey, the latter acting for Salmon & Salmon, so understood the matter. The letter which we have given at length in the statement of the case, from Casey to Webb, is the letter of an agent writing to his principal for directions as to Avhat he shall do with the fund in the event that the draft is honored and it was full notice to the Missouri Savings Association that Salmon & Salmon proposed to act, not for the plaintiffs in the case, but for the Missouri Savings Association, in seeing to the payment of the prior incumbrance out of the $3000 for Avhich the draft had been drawn. It is true that the Missouri Savings Association did not answer this letter either by letter or telephone, as requested to do in the letter, but they did not repudiate it, and it is in evidence that when they heard of the failure of the Salmon & Salmon bank, they at once got into communication with Mr. Bartlett, at St. Joseph, the man who held the note represented by the prior incumbrance, to ascertain from him AAdiether or not Casey or Salmon & Salmon had paid off this prior incumbrance; Avhich, in a measure at least, lends support to the view that they were up to then, satisfied to have Salmon & Salmon act for them in the transaction and were solicitous only to find out whether or not they had, with the proceeds of the draft, *631lifted the prior incumbrance and cleared the land from that burthen. It was not until the Missouri Savings Association took up the matter with the Commonwealth Trust Company that it is suggested in any manner that they looked upon Salmon & Salmon as the agents of the plaintiffs in the transactions. In that letter, set out in the statement of the case, the proposition is for the first time advanced, that Salmon & Salmon were the agents, not of the Association, but of the plaintiffs. That came too late. We do not mean to hold that these acts of the Savings Association are binding on plaintiffs. They are, however, evidence of the light in which the Association regarded Salmon & Salmon and are confirmatory of the testimony of Cooper to the effect that Salmon & Salmon were agents of that Association and that he had so dealt with them. The acts of all the parties, prior to the time of the failure of the bank of Salmon & Salmon, which up to that time, so far as the evidence shows, enjoyed credit and was a going concern, clearly prove that all of them considered Sa.lmon & Salmon the agents of the Missouri Savings Association in the transaction, and considered them the conduit through which not only the papers were to pass from the plaintiffs to the Missouri Savings Association, but more than that, the agents of that Association in the proper application of the money which was to be paid on the loan. It will not do, therefore, to say, under these circumstances, and in the light of the testimony, as the very earnest counsel for plaintiffs now do, that Mr. Cooper was mistaken and did not mean what he said, when he declared in that testimony that Salmon & Salmon were the agents of the Missouri Savings Association and that he so considered them at the time, and that he had never at any time considered them his agents in the transaction. When plaintiff delivered, the notes and deeds of trust to Salmon & Salmon, according to his own sworn testimony, he delivered them to the agents of the Missouri *632Savings Association as he had been directed to do. With that delivery his title to them passed out of him. The Missouri Savings Association received and, according to the testimony, still bolds these papers. It remitted the money on the draft drawn against them, not to plaintiffs but to defendant, who was the person designated by the agent of the Association to receive it. If that party, the defendant here, failed to pass it on to plaintiffs, its failure to do so, while it might be a question between it and the Association, did not and does not give plaintiffs a right of action against it, either for money had and received or for conversion. If there had been a conflict in the testimony as to the question of whose agents Salmon & Salmon were in the transaction, it would have been the duty of the trial court to have declared that an issue of fact to be determined on the testimony. The declaration of law given at the instance of plaintiff ignored this and proceeded upon the theory that Salmon & Salmon were the agents in the transaction, not of the Missouri Savings Association but of the plaintiffs. While not expressly doing that in the instruction, the rule of laAV announced in it is sustainablé upon no other theory. Looking at the facts in the case as developed by the evidence in it, there was no conflicting testimony on this point. It was all one way and positive to the effect that Salmon & Salmon, in the transaction, were the agents of the Missouri Savings Association and not the agents of the plaintiffs.
The acts of the defendant, on receipt of the draft and attached papers, so far as the evidence in the case shows, seem to have been in entire accordance with the usual banking custom. There was nothing irregular nor unusual in defendant crediting Salmon & Salmon with the draft as a cash item and whether it was warranted in so doing is another matter. As Salmon & Salmon, who drew that draft, were not, as we hold, the *633agents of plaintiffs in so doing, these plaintiffs are not, in this case, concerned with that.
The owner of the notes alone can maintain action for conversion or for money had and received thereon.. When the notes and deeds of trust were delivered by plaintiff Cooper to Salmon & Salmon, it was a delivery to the agent of the Missouri Savings Association, the party entitled to them. They then and thereafter became the property of the Missouri Savings Association. This did not affect the right, of plaintiffs either to recover any sum due thereon, from the holder or owner of the notes, or to have them cancelled for non-payment, but it did extinguish their title to the notes as notes. Plaintiffs were no longer the owners after delivery to Salmon & Salmon and hence cannot recover.
It. is due this court to say that when this matter was first argued and presented to us, this feature of the case upon which we now decide it was not presented by counsel or dwelt upon in such a way as to attract our attention, or to turn our minds to- a consideration of the effect of this aspect of the case. For the reasons now stated, the judgment of the trial court is reversed.
All concur.