dissenting.
I am unable to agree with my estimable colleagues in our disposition of this case. I would affirm the judgment of the trial court.
The critical point in our denial of the bank’s lien upon the California property securing the Green River note to Mark Twain, according to the majority opinion, is the bank’s payment of the proceeds of the loan into a bank account which was entitled in the name of “Kroh Brothers Development Company” and not in the name of “Green River Associates.”
The partnership agreement among the general partner of Green River (Kroh Brothers Equity Company, a wholly owned subsidiary of Kroh Brothers Development Company) and the limited partners required that Green River maintain bank accounts and deposit partnership funds therein. Since Mark Twain deposited the Green River loan proceeds in a bank account entitled Kroh Brothers Development Company, says the majority opinion, and even though the deposit was made at the direction of Green River through its general partner, the bank loses its loan and Green River receives its property discharged of the lien of the deed of trust securing the repayment of the same.
I would hold that Green River is es-topped from asserting that the bank must lose its security, and therefore its loan, because it placed the proceeds of the loan in the Kroh Brothers account, and did not *900insist upon depositing it in a bank account entitled “Green River Associates.” 1
Estoppel is an amorphous concept, without clear and definable boundaries, and conduct which may be said to give rise to an estoppel in one case may be called acquiescence or waiver in another. See 28 Am. Jur.2d Estoppel and Waiver § 30 (1966). After Green River had over a long period of time acquiesced in the practice of commingling its funds with others in a bank account titled to another entity, I would apply the concept (by whatever name) to refuse to Green River the right to deny it had received funds which Mark Twain had deposited in that account upon Green River’s instructions.
The fact was, the general partner and the limited partners of Green River Associates themselves had ignored the partnership provision about the maintenance of Green River bank accounts. The mode of operation of Kroh Brothers Development Company was to maintain a single bank account into which the funds of all the limited partnerships were deposited and commingled. The distribution of the funds in the account were controlled on Kroh Brothers internal books. For example, when Kroh Brothers received the advice that $3,057,790 (amount of $3,100,000 loan less loan expenses) had been deposited in the Kroh Brothers Development bank account as proceeds of the Green River Associates loan from Mark Twain Bank, an entry was made to show that Kroh Brothers Development was indebted to Green River Associates in that amount.
Mr. Ewing Kauffman was the major limited partner, with a 90.3% interest. He had become a limited partner on December 7, 1979. Edward L. Benson had a 3.6% share, and C. Ted McCarter and Michael E. Herman had 1.8% each.
The limited partners constructively knew that Green River funds were being deposited in bank accounts other than Green River bank accounts. Throughout the nine-year history of the Green River Associates limited partnership, its funds had been deposited in other bank accounts and commingled with funds of other Kroh Brothers limited partnerships. The existence of this practice for such a long period of time was sufficient to give constructive notice thereof to those who had an interest in it, and whose business it was to be informed about it. They could not expect others to challenge the practice which they had acquiesced in over a long lapse of time.
But the limited partners had more than constructive knowledge that Green River funds were being commingled with the funds of other limited partnerships; Mr. Kauffman had actual notice of facts which should have placed him upon inquiry. Peat, Marwick, Mitchell & Company reviewed some of his investments and reported to his agent Jim Mellilo, by a lengthy letter dated December 29, 1981: “Currently, the funds of Hernando Associates, Ltd., Hillsboro Associates, Ltd., Leawood Office Associates, Green River Associates, [all Kroh Brothers limited partnerships in which Mr. Kaufman was a limited partner] and other general partner affiliates and partnerships are commingled in the same bank account at United Missouri Bank.” Mr. Kauffman was not conversant with his investments; he relied almost entirely upon the advice of Mike Herman, whose duty it was to direct his investments, and upon people under Mr. Herman’s supervision, including Jim Mellilo, mentioned above. Mel-lilo after receiving the Peat Marwick letter instructed Kroh Brothers to cease commingling the monies of these various partnerships. Kroh indicated that the commingling would be stopped. Neither Mr. Kauffman nor his agents followed up with Kroh to determine whether the commingling had ceased, and, in fact, the commingling continued.
Commingling Green River funds with those of other entities is not exactly the same thing as not having a Green River bank account for Green River funds, but the practice of commingling funds would *901naturally raise the question of the title of the bank account in which the funds were commingled — and, furthermore, the partnership agreement provision for bank accounts in the name of Green River had for its purpose, or its main purpose, the avoidance of commingling. The Peat Marwick letter, therefore, would have drawn Mr. Kauffman’s and his representatives’ attention to the bank account and, if they objected to Kroh Brothers’ way of handling the Green River funds, they could have corrected it at that time.
Another fact would have drawn the limited partners’ attention to the absence of a Green River Associates bank account. That was the receipt by the limited partners of distributions by checks drawn upon a United Missouri Bank account in the name of Kroh Brothers Management Company, an affiliate of Kroh Brothers Development Company and Kroh Brothers Equity. This fact, however, did not cause the limited partners to take any action about the deviation from the terms of the partnership agreement with respect to the maintenance of a Green River bank account.
To summarize, the limited partners over the nine-year life of the Green River limited partnership failed to take any step to enforce the provision in the partnership agreement which required the maintenance of separate Green River bank accounts, even though they knew, or should have known, that the Kroh Brothers general partner was not complying with that part of the agreement. The Mark Twain Bank should not be held to greater zeal in requiring a separate Green River bank account than the partners had themselves exercised.
It is significant, furthermore, that the Bank’s transfer of the funds into the Kroh Brothers bank account in no way caused, or made it easier for Kroh Brothers to misappropriate the funds. Had the Bank written a check to “Green River Associates” for the proceeds of the loan and delivered it to the Green River general partner, the general partner could have collected it and misappropriated it just as easily and conveniently as it did when the funds were disbursed to the Kroh Brothers account in United Missouri Bank. The case is unlike those cases where the third person’s (the Bank’s, in the case before us) payment of trust funds to another at the trustee’s direction places the funds beyond the reach of the trust and the beneficiaries and the payment itself constitutes the misappropriation. In those cases, the person in the Bank’s position (if he had knowledge of the breach of trust) is a “participant” in the misappropriation. Restatement, Trust 2nd, Sec. 321-326; Trusts and Trustees, Bogert, Sec. 901-912; IV Scott on Trusts, Secs. 321-326. That is not the case here. The Bank’s transfer of funds did not “further or complete” the breach of trust by Kroh Brothers; and, furthermore, it had no knowledge at the time that its transfer of funds amounted to a breach of trust. Unless both those elements are present, the Bank cannot be held as a “participant” in Kroh Brothers breach of trust. Bogert, Trusts and Trustees, See. 901.
It is difficult to accept the appellant’s argument, adopted by the majority opinion, that the bank’s claim on the note and mortgage is unsupported by consideration. Consideration, by its classical definition, may consist of a benefit to the one party or a detriment to the other. 1 Williston on Contracts §§ 102-103 (W. Jaeger 3d ed. 1957); Hunt v. Dallmeyer, 517 S.W.2d 720, 724 (Mo.App.1974). Both were present in this case. The bank certainly suffered a detriment; it paid out the proceeds of the Green River’s loan in the form of cash transferred and deposited as directed by the borrower, Green River. And Green River received a benefit; at the time of the transfer, and for some undetermined time thereafter, the funds were available to Green River and could have been used by Green River. The signators on the Kroh Brother Development bank account into which the loan proceeds were deposited were John Kroh, George Kroh and A.T. Wheeler, who were the directors, and the only directors, of Kroh Brothers Equity, which was the Green River general partner. The funds were accessible by Kroh Brothers Equity and hence by Green River. *902The record does not show when the Green River share of the bank account disappeared.
The trial judge in rendering judgment for the bank noted: “The responsibility to use an honest fiduciary is with the principal who retains the fiduciary.... If Mark Twain Bank was not guilty of bad faith in its dealings with Kroh Brothers Equity or Green River, the loss should be sustained by the one who retained the fiduciary that occasioned the loss.” This is an ancient and incontestable principle. As between two innocent persons, one of whom must suffer the consequence of a breach of trust, the one who made it possible by his act of confidence must bear the loss. Spikes v. Clark, 411 S.W.2d 148, 154 (Mo.1967); Bolivar Reorganized School Dist. v. American Surety Co., 307 S.W.2d 405, 410 (Mo.1957); 27 Am.Jur.2d Equity § 147 (1966). This principle, under the facts of this case, seems to me to be decisive of the case and indicate affirmance of the judgment in Mark Twain’s favor.
. The Bank before disbursing the loan proceeds inquired about the existence of a Green River bank account and was correctly informed there was none. If there had been a Green River bank account, presumably the Bank would have transferred the funds to it.