dissenting.
In my view, the trial court erroneously granted summary judgment in favor of the Bank of Dahlonega. I do not agree with the majority that either Judge Story’s order or the bankruptcy settlement precluded consideration of the various state law claims asserted by Fernandez against the funds; that none of the claims is meritorious; or that they were waived.
1. (a) I certainly agree that the issues decided in Judge Story’s order are res judicata. Unlike the majority, however, I find no factual determinations in Judge Story’s order regarding the merits of the competing claims. Judge Story made a determination that ERISA no longer afforded protection to the funds once the cashier’s checks were issued because a “distribution” had been effected. I agree that the principle of res judicata compels acceptance of that determination.1
In his order in the interpleader action, Judge Story decided that “Dr. Fernandez has a claim against the funds as the participant. The Bank of Dahlonega has a claim against the funds based on its lien.” That does not appear to me to be a decision, having res judicata effect, resolving the warring claims to the funds under state law. Judge Story’s order appears to be simply a determination that the Ellijay bank did no wrong because it did as instructed, and that determination of the remaining dispute — the competing claims to the funds — should proceed in the Gilmer County action. As such, the principle set forth in Gunby v. Harper, 216 Ga. 94 (114 SE2d 856) (1960) is applicable despite the fact that Gunby involved the overruling of a demurrer, as the majority correctly points out. That is, Judge Story’s order “ ‘merely determine [d] the right of the stakeholder to maintain [its interpleader] petition, and [did] not establish the superiority of [one or] the other claim as the law of the case.’ [Cit.]” Id. at 97.
(b) Neither did the bankruptcy court decide this question. At the time of the bankruptcy settlements, the trustees in bankruptcy did not know whether the interpled funds would be the property of either bankruptcy estate; no court had as yet ruled in the interpleader action. The bankruptcy stay was, in fact, lifted specifically so that the *746interpleader litigation could continue. Moreover, the bankruptcy releases, executed in the context of the settlements, released only the claims of Fernandez against the Dahlonega bank (presumably those arising from the allegations of securities fraud). As discussed infra, the claim involved in this case is not Dr. Fernandez’s claim against the Dahlonega bank but the pension plans’ claim to the interpled funds.
2. Since I believe neither Judge Story’s order nor the bankruptcy proceedings precludes consideration of the state law claims, I turn to the merits of those claims.
First, the U.C.C. claim, in my view, is meritorious. The cashier’s checks that are the interpled funds were issued in the name of the P.C. The Dahlonega bank admits they became assets of the P.C. The P.C., however, did not purchase the checks for value; the checks represent funds that belonged to the pension plans, rather than to the P.C. They became assets of the P.C. only because of Longino’s mistaken instructions to the Ellijay bank. As a result, although the Ellijay bank was blameless because it followed Longino’s instructions, the P.C. was never a holder in due course. OCGA § 11-3-302. Although the Dahlonega bank may have had a lien on those funds by virtue of the guaranty, it could satisfy that lien by taking only whatever interest the P.C. had in the checks, subject to the valid claims of any person and the defenses available to any party in a contract action, such as mistake of fact. OCGA § 11-3-306 (a), (b). Such a defense is available here.
Second, I cannot agree that the record fails to support Dr. Fernandez’s claim under state law of resulting trust. Because of the unique facts in this case, I believe the funds were impressed with an implied trust for the benefit of the pension funds. This implied trust could be either a resulting trust or a constructive trust, as it fits the circumstances described in both OCGA § 53-12-92 (a) and OCGA § 53-12-93 (a). The record amply supports this allegation. The affidavits of the office manager of the P.C. and a principal in the firm that had responsibility for administering the retirement plan show there was no intent to make a distribution; the intent was to transfer the funds and keep them in the plans. Although some of the content of these affidavits is hearsay, it is also part of the res gestae in this case; it is therefore admissible. OCGA § 24-3-3; see Stouffer Corp. v. Henkel, 170 Ga. App. 383, 385 (1) (317 SE2d 222) (1984). Compare Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2) (a), 66 (2) (c) (397 SE2d 576) (1990).
3. Finally, I do not agree with the majority that any of these state law claims were waived by Dr. Fernandez through his conduct. Because the majority does not specify the conduct relied upon to reach this conclusion, it is difficult to rebut. But, assuming the conduct is *747that of Longino in instructing the Ellijay bank incorrectly, it does not indicate waiver; together with the affidavits discussed supra in Division 2, it forms part of the rationale for concluding that the state law claims are meritorious. A mistake was made that resulted in the P.C. acquiring legal title to funds to which it was not entitled. The funds belong to the pension fund. Although the Dahlonega bank may have a lien on assets of the P.C., it may not satisfy that lien by attaching funds to which the P.C. has no entitlement.
Decided June 13, 1995 Reconsideration denied July 10, 1995 Stewart, Melvin & Frost, J. Douglas Stewart, Steven A. Cornelison, for appellants. Peterson, Dillard, Young, Self & Asselin, Susan W. Housen, J. Douglas Parks, Mazursky & Hiner, E. Lindsay Hiner, Thomas P. Stamps, for appellee.I would reverse the trial court’s grant of summary judgment to the bank.
I am authorized to state that Presiding Judge McMurray and Presiding Judge Pope join in this dissent.
I express no opinion regarding the merits of this determination. However, even if it was correct, the distribution was made to the P.C., not to Dr. Fernandez.