(dissenting).
I respectfully dissent. Although this case is cluttered up with numerous facts, some of a confusing or contradictory character, nonetheless there are a few that aré not disputed and which appear to me to be quite simple and decisive, all in harmony with the trial court’s judgment.
The only question in this case is whether a check for about $8100 made payable to defendant Lundahl, endorsed and deposited by Lundahl, with a condition imposed by Lun-dahl that it was for collection only, places an absolute liability on the bank to collect the amount from the maker’s bank, in spite of hell and high water, failing which, the bank, an obvious agent of Lundahl, becomes, not an agent any more, but an unnamed surety without consideration. All this because of a claim of lack of notice of dishonor under some real or ethereal code provision that apparently has nothing to do with a “deposit for collection only.” I think that the question should be resolved in favor of the trial court’s conclusion that under the facts of this case the bank is not legally liable to contribute its own money for the claimed “loss” of money, that was not. lost at all, Lundahl ■ still has a claim for it against the maker, and if the amount is paid by the latter, whose obligation it is, obviously it would result in an unjust enrichment if plaintiff also paid. The cir*438cumstances that Lundahl did not or could not pursue the obligor should be no reason why a mere agent depositee for collection should transmute a primary obligation into a suretyship relationship sans any consensual aspect.
It might be noted that although the main opinion attributes liability to the plaintiff bank because of the check’s dishonor by a foreign bank and First Security’s failure to give notice thereof, — that conclusion is not quite true under the circumstances of this case. The foreign bank simply notified First Security that there were insufficient funds presently to pay the check but that it would be held for later payment unless otherwise advised. In such case First Security persisted in being Lundahl’s agent for collection only, as is reflected in the bank’s elimination of interest.
I am unimpressed by the stresses and strains indulged in argument anent the prerogative of the judge as opposed to those of the jury under a rule whose clarity, I would venture, has been unclarified and explained by not one, but many judicial interpretations, as is reflected in the annotations of both the state and federal rule, being 49(a) in both bailiwicks.
The bank should be protected against an unjust enrichment (Restatement, Restitution, Sec. 1, Unjust Enrichment), particularly since there is nothing inimical in the Commercial Code with respect to such protection.
There was no such thing as an accord and satisfaction in this case with respect to-the check in'question. The check simply was being held by an agent, for the purpose of collection only. Fiad this agent (the bank) collected on the check, but had not paid the proceeds over, the proceeds then may well have become an item includable in a true accord and satisfaction atmosphere.
The trial court should be affirmed.