specially concurring:
I concur in the majority opinion except insofar as it is based upon the premise that the bank had accepted the deposit without knowledge of its special status.
The original agency relationship of Rust, as agent, and Cox, as principal, is admitted by all. This agency continued through the deposit and until Cox received his money. In my opinion it is immaterial whose name appeared on the certificate of title, or what money Rust may have advanced to Cox, or what agent or means Rust used to transfer title and possession to the purchaser, it was still Cox’s truck until the purchaser (B & M) paid for it. Rust was a mere conduit through which the purchase money, less commission, was to flow to Cox.
I am in agreement with the majority opinion in concluding that the trial court erred as a matter of law in finding that this purchase money was not a trust fund as between Cox and Rust. I would go further and say that as a matter of law the bank knew this was trust money and specially deposited. It is undisputed that Rust had tried to sell the Cox truck to several other pur*589chasers. It also appears that either those attempted sales or at least sales of other equipment “were attempted to be financed through the Metropolitan Bank”; that Rust had been to the bank about this particular sale before making the deposit and during his discussion with the bank’s official his ledger card was on the table; and the bank itself had Rust secure a telegraphed guarantee of the purchaser’s check from the Bank of Vernal, the telegram being directed to and received by the bank.
Common sense dictates that Rust, a businessman who owed past-due obligations to the bank, would not have deposited this check in his account and forthwith drawn a check thereon to Cox for his share, unless he was satisfied that the bank would not seize it to discharge his own obligations.
Since the bank under the facts here is chargeable with knowledge of the nature of the funds and the purpose of their deposit, it makes no difference whether it changed its position in any way as a result of the entire transaction, it could be in no worse position as a creditor of Rust than before, and only improved its position by appropriating Cox’s money to the payment of Rust’s debt.
This was a simple sale through Rust to B & M. To hold otherwise would be to countenance a rule which would do violence to established principles of agency, as well as the rules relating to the right to trace trust funds.
Cox is entitled to his $4,500.00 together with interest and costs from the bank. Tribune Grain Inc. and Sullivan, Inc., can, as the majority opinion holds, recover nothing.