On Application for Rehearing
PONDER, Justice.We granted a rehearing in this case because we were not convinced that an express or technical trust was involved. On reconsideration of the case, we have arrived at the conclusion that the agreement between the parties did not disclose an express or technical trust and that, therefore, the debt was dischargeable in bankruptcy. No express trust was created in the contract or by statute and the sole question presented is whether or not the defendant acted in a fiduciary capacity.
It appears that the plaintiff, a general insurance agency, entered into’ an agreement with the defendant, a local agent, and that the agreement contains no express trust. The pertinent part of the contract is recited in the original ’and dissenting opinions previously handed down in this case and it is not necessary to repeat them herein. The important part of the agreement is the manner in which the local agent was to remit the balance due on the premiums to the general agent. According to the contract, monthly accounts were to be prepared by the general agent and forwarded to the local agent and the balance due from the premiums after the local agent had deducted his commission were to be transmitted to the general agent within sixty days after’ the close of the month. There is no provision in the contract requiring the premiums to be kept in a separate account. Under the contract the funds derived from the premiums could be mingled with the funds belonging to the local agent; all the contract required of the local agent was the remittance of the balance due to the general agent not later than sixty days after the close of the month. Under these circumstances, no fiduciary relationship was established. The phrase, “in any fiduciary capacity”, as found in the Federal Bankruptcy Statute, 11 U.S.C.A. § 35, sub. a, has consistently been limited in its application to technical trusts and trusts which have been actually and expressly constituted by the parties. “The term ‘fiduciary capacity’ relates to technical or express trusts, and not to those trusts which the law implies from a contract or the position of parties to a transaction. See Crawford v. Burke, 195 U.S. 176, 25 S.Ct. 9, 49 L.Ed. 147; Noble v. Hammond, 129 U.S. 65, 9 S.Ct. 235, 32 L.Ed. 621; Maxwell v. Evans, 90 Ind. 569 [596], 46 Am.Rep. 234; American Agr. Chemical Co. v. Berry, 110 Me. 528, 87 A. 218, 45 L.R.A.,N.S., 1106, Ann.Cas.1915A, 1293; Woodward v. Towne, 127 Mass. 41, 34 Am.Rep. 337; Bryant v. Kinyon, 127 Mich. 152, 86 N.W. 531, 53 L.R.A. 801. *636•* * *. The mere reposing of confidence in. a person with whom one has a commercial transaction does not create the fiduciary relation intended by the Bankruptcy Act.” >6 American Jurisprudence, Verbo Bankruptcy, page 1018, par. 796. Citing Upshur v. Briscoe, 138 U.S. 365, 11 S.Ct. 313, 34 L.Ed. 931, and Goodman v. Herman, 172 Mo. 344, 72 S.W. 546, 60 L.R.A. 885. Further on page 1019 it is stated: ■
“The use of the word 'trust’ in an instrument does not make the relation a fiduciary one within the meaning of the exception, where the legal effect of the instrument is not to create a fiduciary relation (citing thereunder Upshur v. Briscoe, supra). Agents, bailees, brokers, factors, commission merchants, purchasers under conditional sale contracts or trust receipts, and the like, although occupying positions which are popularly known as positions of trust, are not in a fiduciary capacity by virtue of an express trust, so that debts created by their acts in such positions will be excepted from a discharge in bankruptcy.”
The rule is well stated in the case of Crawford v. Burke, 195 U.S. 176, 1, 89, 25 S.Ct. 9, 11, 49 L.Ed. 147, as follows:
“We may remark here, in passing, that ever since the case of Chapman v. Forsyth, 2 How. 202, 11 L.Ed. 236, this court has held that a commission merchant and factor who sells for others is not indebted in a fiduciary capacity within the bankruptcy acts by withholding the money received for property sold by him. This rule was made under the bankruptcy act of 1841, and has since been repeated many times under subsequent acts. Neal v. Clark, 95 U.S. [704] 708, 24 L.Ed. 586; Hennequin v. Clews, 111 U.S. [676] 679, 4 S.Ct. 576, 28 L.Ed. [565] 567; Noble v. Hammond, 129 U.S. [65] 68, 9 S.Ct. 235, 32 L.Ed. [621] 623; Upshur v. Briscoe, 138 U.S. [365] 375, 11 S.Ct. 313, 34 L.Ed. [931] 934, — as well as in cases in the state courts, too numerous for citation.”
This rule is equally applicable under the circumstances in the present case.
For the reasons assigned, the judgment of the lower court is reversed and set aside and the plaintiff’s suit is dismissed at its cost.
MOISE, J., dissents for reasons set forth in the original opinion, with written reasons.