(concurring). While I believe the foregoing opinion sufficiently vindicates the conclusion reached, I desire, in view of the dissent expressed, to add a few lines. It must be kept in mind that the suit is against certain individuals as the clearinghouse committee, and not against: the banks involved in the exchange. If the latter did anything by which the plain-tit? is aggrieved we cannot consider it here. The defendants are only liable for their own acts. These acts are those connected with the exchange of March 20,1891. What were they ? On the morning of that day the Keystone Bank delivered to their manager a package of its owm obligations (received from other banks for cancellation) to be held as security for the payment of $47,000, which it had undertaken to pay by 12 o’clock that day. It did not pay; and as the value of the security depended upon holding the indorsers,-*652the committee, on being indemnified by tbe receipt of an equal sum of money from tbe other banks, handed the obligations oyer to them. On this state of facts what claim has the receiver on the committee? Until the $47,000 are paid by the Keystone or tbe receiver, neither has any right to the obligations; nor can either complain of the disposition made of them. When the money for which they are pledged is paid the receiver will be entitled to them, and the committee must then produce them, or account for their value. The bank did not pay the money, and the receiver will not, because it greatly exceeds the value of the obligations — which consist of promises of the broken bank, comparatively worthless. Their value is just the amount of the dividends they will draw if not redeemed. If the receiver redeems them he, or rather the creditors of the bank, will be benefited to the extent of the dividends thus saved — nothing more.
The fundamental error of the plaintiff consists in the assumption that the exchange of obligations was annulled by the subsequent transaction between the committee and the other banks — respecting which nothing need be added to what is said in the foregoing opinion. But if we concede this assumption the plaintiff will not be helped. The annulment of the exchange, if it bound the Keystone, might and doubtless would entitle the latter to a return of the $70,000 of obligations, which it had previously held. But it would not render the committee liable for their return. The committee never had nor saw them. But even conceding the committee’s responsibility for their return, the assumption that it became liable to pay $70,000 for failure to return them is clearly erroneous. In such case the measure of damages would be the amount the receiver lost by such failure. This would be the value of the obligations to him and the creditors. Let us see what this is. The banks owing the obligations, held $117,000 of the Keystone’s liabilities, which were a valid set-off. The receiver could not therefore recover a cent. The obligations nevertheless had some value, as they would extinguish $70,000 of the Keystone’s liabilities, thus diminishing the claims against its assets that much; saving to the creditors the dividends which the $70,000 of obligations would draw if not canceled. This then is the loss from failure to return them. If the assets will pay 30 per cent, (which is very improbable), the dividends on $70,000 would be $21,000. Thus we see, even assuming that the exchange was annulled, and that the committee became responsible for the obligations, the receiver is not entitled to $70,000, as claimed and awarded. As the dividend rate is not ascertained we cannot know what (in this view) the receiver’s loss is.
But the plaintiff further assumes that the clearing house received $70,000 for the Keystone Bank, in its transaction with the other banks; after the Keystone’s failure. This assumption is wholly unwarranted. Nothing I think can be plainer than that the other banks did not pay any money to the committee for the Keystone, or its receiver. Why should they? What object could they have in doing so? They owed that bank nothing. On the contrary it owed them. Why therefore should they volunteer to pay the ob*653ligations it had held against them while they held its obligations (which were an available set-off), exceeding the amount in f47,000? In doing so they would simply throw away $70,000, (saving the inconsiderable sum that might be recovered back in dividends). It is clear that none of the money paid to the committee was intended for the Keystone, or inured to its benefit. It gave up nothing. Its rights under the exchange remain intact. When it pays its debt the obligations must be returned or their value accounted for. The object of the other banks in paying money to the committee is not clear, and we are not calk'd upon to ascertain it. Why it was paid and what was done with it is unimportant. It was their own, to do wi(h as they pleased. It was probably paid to settle balances among themselves. But whatever the object was, it is clear that it was not to benefit the Keystone Bank, and did not interest it. It is conceded that the object was to benefit themselves, alone.
The erroneousness of the decree may be illustrated by another statement. The Keystone Bank cannot claim to be placed in a better position than it occupied at the date of its failure, or to be benefited by its refusal to keep its contract and the action forced on the other banks thereby. Yet it is indisputable that the decree does place it in an infinitely better position — gives it, in effect, over $80,000 as a premium for its faithlessness. Let us see if this cannot be demonstrated. If the bank bad kept its contract, it would have paid out §47,000, which would have been lost to the receiver and creditors — by diminishing the assets for distribution that much. It would then receive $117,000, not of money, hut of its own nearly worthless obliga!ions, for cancellation. The receipt of these obligations would have benefited the receiver and creditors just to the extent of the dividend the obliga lions would draw if not canceled. Kow supposing the dividend rafe to be 30 per cent, (which is doubtless much too high) the dividends on the $117,000 of obligations would be $35,100. To redeem and cancel them costs $47,000; deducting the $35,100 from this shows a loss to the receiver and creditors of $11,900, as the result of carrying out the contract. The receiver acted wisely therefore in not carrying it out; he saved $11,900. But because he did not carry it out and the committee and the other banks entered into the subsequent transaction on their own account, and for their own exclusive benefit, he is given an additional sum of $70,000; axld is thus made a gainer in $81,900 by the failure to keep the contract. If the hanks had intended to annul the exchange of obligations (which they could not do after the receiver’s rights attached), they would of course have returned the obligations received by them from .the Keystone, and set off against them the obligations of that bank which they held. To pay it, or for it, $70,000 in money, as it is alleged they did, would have been an act of folly incompatible with sanity. Of course nothing of the kind was intended or done.