(concurring) — I agree that the trial court was in error in dismissing the actions. There was neither maintenance nor champerty because Share Brothers and First Buffalo Association have a direct financial interest in the litigation.
*741The principal question concerns responsibility for the missing funds. From time to time the plaintiff depositors in New York gave money to Share Brothers to invest in certificates of deposit in financial institutions in the West. Share Brothers transferred that money to the First Buffalo Association of New York which in turn sent it to North American International Company, Inc., also of New York.
Initially, North American paid the local financial institutions directly, mailing checks to Carl Brandenfels in Seattle who had arranged for the purchase of the certificates of deposit. Problems arose when a federal regulatory agency investigated possible violations of its "5 (.'t " rule which prohibits savings and loan associations from accepting more than that percentage of deposits in brokered funds. To circumvent these problems, North American deposited the money in its bank and caused certified checks to be drawn which were payable to the National Bank of Commerce and which contained the notation "for purchase of CD's", or similar words. At Brandenfels' request, the Bank of Commerce deposited these checks in his personal accounts. All was well until $65,000 worth of certificates of deposit issued to the depositors were canceled because Brandenfels' personal checks given in payment therefore were returned "nsf." Brandenfels departed shortly thereafter.
The critical issue is whether the Bank of Commerce was justified in depositing the money in Brandenfels' personal accounts. Although the record consists of six pouches of clerk's papers, it is yet unclear what part Brandenfels was playing in the eastern money brokers' game. Bank of Commerce argues that he was North American's agent in the placement of the money. It points out that the checks were sent to Brandenfels for delivery to it and that it was Bran-denfels who arranged for or directed the purchase of the certificates of deposit. In addition, Brandenfels was to some extent involved in a bonus and fee scheme carried on in connection with the transactions. The Bank of Commerce was not a party to this.
*742The depositors argue that the Bank of Commerce is liable for the $65,000 lost because it delivered the proceeds of the checks to an unauthorized party. The checks do evidence a business transaction of some kind, but they do not establish the entire arrangement between North American, Brandenfels, and the Bank of Commerce. It will require a trial to do that.
There are material issues of fact concerning the Vant Zelfdes1 cause of action and that, too, should be tried.