dissenting:
I respectfully dissent from the majority opinion and the specially concurring opinions.
The right of a bank to apply general deposits standing in the name of and belonging to a depositor to the payment of such depositor’s past due indebtedness to the bank is a right generally recognized throughout the United States. Colorado, as evidenced by numerous decisions of this and the former Court of Appeals, recognizes this right.
*594In Manitou v. First National Bank, 37 Colo. 344, 86 Pac. 75, it was said:
“When a bank holds a depositor’s note, it has the right at any time during the day on which it falls due to apply funds in its hands, belonging to the depositor, to the payment of the note. * * *. The rule is thus stated in 3 Am. & Eng. Enc. of Law (2d ed.) 835:
“ ‘The right of the bank to apply deposits to the ex-tinguishment of the depositor’s indebtedness as it matures, grows out of the doctrine that the relationship between bank and depositor is that of debtor and creditor. The bank holds a lien upon the deposits in its hands to secure the repayment of the depositor’s indebtedness, and may enforce that lien as the debts mature, by applying the debtor’s deposits upon them, thus setting the two off against each other.’ — Bank v. Hughes, 17 Wend. 94; Scammon v. Kimball, 92 U.S. 362; Schuler v. Bank, 27 Fed. 424.
“The above principle has been recognized by this court in Boettcher v. Bank, 15 Colo. 16.” (Emphasis supplied.)
The law is equally clear that a bank may not apply a general deposit standing in the name of one depositor to the payment of the past due debt of another depositor.
In Miller v. Mickel, 9 Colo. 331, 12 Pac. 240, the bank had taken money from Miller’s private account and applied it as payment on a past due indebtedness owing the bank by a mining company of which Miller was the treasurer. In holding that the bank had no authority so to do, the court said:
“ * * * The court did not err in refusing to allow the overdraft on the account of the mining company as an offset against the individual claim of the plaintiff.”
In Sherberg v. Bank, 122 Colo. 407, 222 P. (2d) 782, the bank took money deposited in the name of Ray Essert Industries, Inc., and on September 24, 1947, applied the same as payment on the personal note of Essert, which note was not past due and in fact did not become *595due until October 10, 1947. There the court held that the bank had no right to offset the accounts for the reason that the funds on deposit were deposited for a specific purpose, all of which was well known to the bank. The end result of the Sherberg case could very properly have been reached on two grounds: (1) The bank had no right to apply the deposit, in the account of “Ray Essert Industries Inc.” to payment of Essert’s personal note, Miller v. Mickel, supra; and (2), the note of Essert was not due at the time the deposit was seized.
Bearing in mind the foregoing general principles, let us examine the facts in this case. There is no dispute whatsoever as to what transpired between Cox and Rust. There is nothing in the record to indicate that Cox and the bank ever had any dealings with each other, except on December 20, 1954, when Cox appeared at the bank with Rust’s check for $500.00, which was presented in the usual and regular course of business to one of the tellers and was by him paid, and the amount so disbursed was charged against Rust’s account. There is nothing in the record to indicate that Cox and B & M Service Station of Rangely, Colorado (hereinafter referred to as B & M — the firm to whom Rust sold the truck), had ever had any business dealings. There is a sharp conflict in the testimony as to what if any knowledge the bank had of the dealings between Rust and Cox; however, the trial judge held that the deposit of B & M’s check by Rust was a general and not a special deposit. The majority opinion states that this finding “is tantamount to a finding that the bank has no notice of the trust nature of the transaction between Rust and Cox. We are bound by this finding of fact for the reason that there is competent evidence to support it.”
Thus, it appears that the majority opinion affirms the finding of the trial court that the bank had no knowledge of dealings between Cox and Rust.
As between Cox and Rust, the undisputed evidence shows that Rust, among other pursuits, was engaged in *596business as a licensed and bonded motor vehicle dealer, who at times as agent sold trucks for others on a commission basis. In October of 1954 Cox was the owner of a truck which he delivered to Rust as his agent to sell; Rust was to receive for his services all amounts received in excess of $5,000.00. On December 15, 1954, Rust made a deal to sell the truck to B & M for $6,000.00 on condition that the body be lengthened. On December 16, 1954, Rust employed The Weber Body Company to lengthen the body and paid $320.00, the cost therefor, with his own check. On December 18, 1954, Cox, knowing that the truck had been sold, approached Rust for money and Rust gave to Cox his check for $1,000.00, which check Cox endorsed and delivered to one Dews as a payment on a home which Cox was buying. On the morning of December 20, 1954, Rust received through the mails from B & M a check in the amount of $6,120.00, being $6,000.00, the amount for which Rust had sold the truck, plus $120.00 sales tax. This check was drawn by B & M Service Station of Rangely, Colorado, on the “Bank of Vernal, Vernal, Utah,” and was payable to the order of Rust. On receipt of this check, Rust contacted the defendant bank to find out how he could get this check cleared.
“Q. Well, now, isn’t it a fact that you went over to the bank to arrange some way to get this check cleared? A. That’s right.”
I am not persuaded that this action on the part of Rust warrants the statement in the majority opinion that Rust took this action “in order to expedite clearance of the checks issued to Cox * * If such was the purpose of Cox, it was not disclosed to the bank for, according to the majority opinion, the bank was without knowledge as to the dealings between Cox and Rust. The bank advised Rust to have B & M call their bank and have it wire the defendant bank that the B & M check would be honored. Rust followed this advice and at about 3:30 *597P.M. the defendant received a wire from the Vernal bank stating that they would honor the check.
About noon of that day, December 20, 1954, Cox went to Rust’s place of business, presented to Rust his Colorado Certificate of Title No. C526042 showing ownership of the truck in question to be in Cox; Cox signed before a notary public the “assignment of title,” appearing on the reverse side of his certificate of title, and whereby he “for value received * * * hereby assign, transfer, and convey unto WILLIAM E. RUST * * * the motor vehicle described on the reverse side * * * and * * * warrant the title * * *.”
On receipt of this title, Rust, already being in possession of the truck, and having lengthened it to suit the purchaser, gave to Cox two checks drawn on the defendant bank; one for $500.00, another for $3,500.00. These checks, together with the $1,000.00 check given to Cox on the 18th, represented the full amount of $5,000.00 that Cox was to receive. Cox promptly took the $500.00 check to the defendant bank and received his money on it as set forth above; he took the $3,500.00 to another bank and endorsed it and deposited it in his savings account. Thus ended the dealings between Cox and Rust, until this action was commenced December 30, 1954. There is no testimony in the record that Cox ever saw the B & M check or even knew the amount of it, to whom it was payable, or on what bank it was drawn or when; there is no testimony in the record that Cox ever gave to Rust any instructions or suggestions as to what should be done with the B & M check. Cox’s understanding of his relationship with Rust on December 20th is well shown by the following from his testimony:
“Q. Did you at any time transfer title to Mr. Rust? A. I did on December 20th when I received the final check from Mr. Rust.
* * *
“Q. What were the amounts of those [checks] ? A. * * * I had just bought a new home and Mr. Rust gave *598me a check for one thousand dollars for a down payment on this home, and then the check didn’t come in for the payment of the truck on the 18th so on the 20th I went down and he gave me the check for $3,500.00 and one for $500.00 to complete the transaction(Emphasis supplied.)
Rust’s understanding of his relationship with Cox on December 20th is well shown by the following from his testimony:
“Q. Then the title was in your name? A. For about — as long as it took the B & M Service Company to take this to the courthouse and change it over. * * *.
“Q. In other words, the records would show you purchased the truck and sold it to B & M? A. Yes, it would show that for that length of time.
* $
“A. My contract with Mr. Cox was to receive all over five thousand dollars. Q. You paid him five thousand dollars for the truck? A. At the time of transfer of the title, on the 20th of December.”
In the majority opinion it is stated that:
“$5,000.00 of the money represented by the check for $6,120.00 was unquestionably received by Rust as trustee for the use and benefit of Cox.”
I find nothing in the record to justify any such conclusion.
As I view the situation, Rust on receipt of the check had no right to cash it, deliver it to Cox, or do anything with it, other than retain possession thereof until the transfer to B & M of the truck and title thereto; that such was the understanding between Rust and B & M is confirmed by their actions. As I .further view the matter, Rust acted as agent for Cox up to the time Cox transferred title to the truck to Rust and accepted Rust’s checks “to complete the transaction.” Rust, on taking title from Cox and giving to Cox his personal checks totaling the amount Cox was supposed to receive, said *599checks being received and accepted by Cox, had completely discharged his duties as agent, and the relationship of principal and agent existing between Cox and Rust was terminated for the reason that the purposes of the agency had been fully consummated. At that time a new relationship between Cox and Rust arose, that of creditor and debtor, as evidenced by Rust’s checks payable to Cox. Rust on transfer of possession and title of the truck to B & M had discharged his obligation to B & M, save and except the obligation to warrant and defend the title of the truck as provided in his bill of sale, and obligations, if any, arising out of misrepresentation or fraud practiced by Rust in the sale of the truck; neither of said obligations was an obligation of Cox.
The check was received by Rust through the mails and there is nothing to indicate that B & M gave Rust any instructions; B & M was interested in acquiring title to and possession of a truck, rather than in creating a trust for the use and benefit of Cox, whom they did not even know. There is no testimony in the record that Cox ever had his hands on the B & M check, and even if he had placed it in Rust’s hands, there is no testimony in the record to the effect that he instructed Rust to hold it, or $5,000.00 of it, in trust for Cox. In my humble opinion there is nothing in the record to indicate the creation of an express trust, nor does it show that Cox has discharged the burden resting upon him of proving that money credited to Rust’s account, being in part the proceeds of the B & M check, were trust funds.
In Botkin v. Pyle, 91 Colo. 221, 14 P. (2d) 187, this court said:
“In order to establish a resulting trust, it is said: ‘It is settled by a complete unanimity of decision that such evidence must be clear, strong, unequivocal, unmistakable, and must establish the fact of the payment by the alleged beneficiary beyond a doubt.’ Pomeroy’s Equity Jurisprudence (4th Ed.), Vol. 3, p. 2357. Further, in discussing the degree, as well as the quantum, of proof, *600necessary to establish a constructive trust, the same author says: ‘The existence of a constructive trust, as of a resulting one, must be proved by clear, unequivocal evidence.’ Vol. 3, p. 2421. * * *. The burden of establishing either a constructive or resulting trust is upon him who seeks its enforcement. * * *.”
In 9 C.J.S. 575, §275 (b), I find the following pertinent language:
“The term ‘trust fund’ has been defined as meaning a fund placed with a bank, not to become a part of its general assets, but to be used for a specific purpose. The mere fact that money deposited was to be used for a specific purpose does not make it a trust fund, but it becomes a trust fund only if deposited with the understanding that it should be set apart for a particular purpose and not mingled with other money of the bank; the mere form of the bank account as adopted by the owner is not sufficient to establish a trust, and the intent of the parties is ordinarily determinative of the question of whether or not a deposit constitutes a trust fund.”
And in §276, the following:
“An unrestricted deposit of funds by a fiduciary is ordinarily regarded as general in character, and the fact that the depositor adds to his name words descriptive of the fiduciary character in which he holds the funds does not render the deposit a special one; nor does the fact that the deposit was one of trust funds made by a fiduciary raise a presumption that it was special.”
I do not find in the record one word wherein Cox complains of any of the actions of his agent Rust, and yet on December 30, 1954, Cox brought this action and made Rust a party defendant. He does not complain of anything that Rust, as his agent, did or did not do; he does not claim anything from Rust as an agent; he claims from him as his debtor and proves Rust to be his debtor by introducing in evidence Rust’s checks for $1,000.00 and $3,500.00 and obtains a judgment against Rust for $4,500.00. I find unsurmountable difficulty in recon*601ciling Cox’s contentions on one hand that Rust was his agent to put $4,500.00 in the bank in Rust’s name for the use and benefit of Cox, and on the other hand that Rust owes him $4,500.00 as evidenced by the two checks.
The learned trial judge at the close of the testimony, speaking of Cox, stated:
“ * * * He received the check for one thousand dollars, and December 20th he received a check for $3,500.00 and then he received a check also on the 20th for $500.00, and he specifically requested whether or not he could go down and cash this check because he needed money. If the five thousand dollars was available in the checking account he would have been very happy to take it that day, before the six thousand dollars had been received from the purchaser of this tractor. So he didn’t expect to be paid only out of this deal, so to speak; any source was sufficient for him. He didn’t even look particularly to it, he just looks now because there are no other sources apparently. * *
Bearing in mind that the bank had no dealings with Cox and had no knowledge of the dealings between Cox and Rust, as the majority opinion holds, I fail to see by what process of reasoning the bank is now cast in the role of trustee and judgment debtor.
In my opinion the record shows, and the majority opinion does not find or hold to the contrary, that Cox, Rust, B & M, the Bank of Vernal, and the defendant bank all pursued their business in the ordinary way, in accordance with general business customs, in compliance with statutory requirements concerning transfer of titles to motor vehicles, collection and remittance of sales tax, and in conformity with the law merchant, and they should not be cast in new roles which they never learned or intended to play until Rust’s checks were not honored.
As a court of review I perceive it to be our duty to determine whether the judgment of the trial court can be supported under the facts and law. It appears to me *602that the majority has been over diligent in seeking for reasons to reverse rather than to affirm, even to the extent of setting aside findings of the trial court, findings which in my opinion are well supported by the record, and have gone further, and:
“To the extent that the opinion of this court in the early case of Boettcher v. Colorado Nat. Bank, 15 Colo. 16, 24 Pac. 582, is out of harmony with the views herein set forth, it is expressly overruled,” and, “To such extent as necessary to harmonize with our views expressed herein, the Sherberg opinion [Sherberg v. Bank, 122 Colo. 407, 222 P. (2d) 782, supra] is modified.”
I find nothing in the specially concurring opinion of Justice Sutton to change my views as above stated. Justice Sutton says:
“ * * * I would go further and say that as a matter of law the bank knew this was trust money and specially deposited. * * *.”
Only Rust testified that the bank had knowledge. The officers of the bank to whom Rust claimed he gave the knowledge categorically denied Rust’s claims. The testimony is in direct conflict, and we have said in hundreds of cases that the trier of the facts, judge or jury, having heard the evidence, observed the witnesses, etc., is better able than we to pass on the matter, and that such findings will not be disturbed where there is evidence to support them.
In Rocky Mountain Dist. v. Hix, 136 Colo. 316, 316 P. (2d) 1041, this court stated:
“ * * * We have adhered to the principle that the findings of a trial court based on conflicting testimony will not be disturbed so many times that citations on that point are no longer necessary.”
Another statement in this “concurring” opinion, in my opinion, is unwarranted:
“Rust was a mere conduit through which the purchase money, less commission, was to flow to Cox.”
The following undisputed facts negate this assertion. *603Rust was the payee in the check; he endorsed the check with all of the attendant liabilities; he received title to the truck through statutory methods, the only recognized lawful method of transferring title; he transferred the title to B & M by methods provided by statute; he warranted the title; he and his corporate surety became liable on their $5,000.00 bond for any damages that B & M might suffer for fraudulent practices inducing the sale; he collected and remitted the sales tax; he issued his checks as payment for the truck. In my opinion these activities gave to Rust a status somewhat foreign to a “mere conduit.”
Nor do I agree with the specially concurring opinion of Justice Frantz.
The law is well settled, as stated by Justice Frantz, that usually when a person endorses a check and tenders it for deposit, the bank becomes the agent of the depositor for collection and credit to the account of the depositor, with the right to charge back if the check is not honored, and this is especially true where, as here, there is printed on deposit slips, furnished by the bank to its customers, notations of the above conditions.
However, the law is equally well settled that the intentions of the bank and the depositor control and even though their intentions are in direct conflict with the terms set forth in the deposit slip.
In 9 C.J.S. 552, §270, it is said:
“ * * * While such slip constitutes an admission by the bank that the relation of debtor and creditor has been created, and furnishes evidence of the date and amount of deposit, it is not conclusive, and the true state of the accounts and not the deposit slip or bank entry determines the rights of the parties.
“Deposit slips should be construed in accordance with the practical interpretation which has been placed upon them by the parties themselves before any controversy arose. A printed notice on a deposit slip, ‘all items cred*604ited subject to payment,’ does not invalidate the bank’s title to a check deposited by the payee, nor show that credit was not given at the time of deposit, but merely indicates that the bank will charge the check back to the depositor if not collected.”
In National Bank v. State Bank, 74 Colo. 309, 221 Pac. 891, this court said:
“ * * * When, as here, a check is endorsed in blank by the payee, and placed in a bank other than the one on which it is drawn, whether such a transaction constitutes a sale of the check to the first bank or is merely a deposit for collection, depends upon the facts and circumstances attending the transaction. * *
In Bromfield v. Cochran, 86 Colo. 486, 283 Pac. 45, the transaction between the depositor and the bank was very similar to the transaction between Rust and the defendant, and the notations on the deposit slip included all notations on the deposit slip in this case. This court held that the parties by their actions made a purchase and sale of the check, and this in spite of provisions of the deposit slip to the contrary, used in making the deposit. It was there said:
“Applying these principals [principles] to the instant case, we must necessarily hold that the intention of the parties is controlling; that pursuant to the provisions of the deposit slip, plaintiff bank, at the time of deposit, was merely an agent to collect; that, when it credited the amount of said check to the payees’ account and thereupon paid to them $652.41 on account thereof, it thereby elected not to exercise the right to decline payment thereof as provided by the terms of said deposit slip; and that the payment so made and the receipt thereof by the depositor evidenced an intention of the parties that a sale of said check be consummated and the bank thereby became the owner of said check.” (Emphasis supplied.)
In Rosenthal v. Bank, 129 Colo. 35, 266 P. (2d) 767, *605this court quoted with approval the following language from 9 C.J.S., page 552, section 270:
“Deposit Slips. A deposit slip is a mere acknowledgement by the bank that the amount named has been received, and an indication of the customer’s purpose to make a deposit. While such slip constitutes an admission by the bank that the relation of debtor and creditor has been created, and furnishes evidence of the date and amount of deposit, it is not conclusive, and the true state of the accounts and not the deposit slip or bank entry determines the rights of the parties.” (Emphasis supplied in the above quote by the court.)
Considering the handling of the B & M check by Rust and the bank, in the light of the above cases, it seems clear that the bank became the owner of the check. The purpose of the telegram was to get the check cleared. The telegram did not serve to expedite the collection of the check; it did serve to induce the bank to give Rust immediate credit, to make the bank instead of Rust owner of the check. This is made even more plain when we find Rust preparing and the bank complying with a deposit slip showing the following:
“B & M Service $6120,00
Cash 325.00
deposit $5795.00”
By that transaction, in my opinion, the bank became the owner of the check; it paid for it by handing to Rust $325.00 in cash and giving to him immediate and irrevocable credit for $5,795.00. This is exactly what was held in the parallel case of Bromfield v. Cochran, supra.
I find not one word in this specially concurring opinion that sanctions one word of the majority opinion, and in my humble opinion it might with equal if not greater propriety be labelled “dissenting” instead of “concurring.”
Mr. Chief Justice Knauss joins in this dissenting opinion.