*527On Motion for Rehearing.
[6] The deposit in this casé was not a special deposit in its restrictive sense, and as defined hy the authorities; that is, the thing deposited should be safely kept, and the 'identical thing returned. It falls nearer under the meaning of a special deposit, as defined by Morse on Banking (5th Ed.) § 207, in which case the bank would be liable for the return of the money to the depositor, or the party in whose name it was deposited, if paid in violation of the contract between the parties with reference to the deposit Section 208. Hunter v. Wallace, 57 Tex. Civ. App. 1, 121 S. W. 180. Again, that author states:
“It is the custom of banks, upon receiving money for a specific purpose, as to pay a note, to mingle the funds with their own, and (to pay the note at a proper time, just as they would a check. The funds are not kept separate. There is no practical difference between such deposit and a general deposit, and it seems clear that the bank should be held to the same liability as for a general deposit.” Section 210, citing, in the note, McLain v. Wallace, 103 Ind. 562, 5 N. E. 911.
This court has practically held to the same view in Young v. Bundy, 158 S. W. 566, and Bank v. Shannon, 159 S. W. 398, in which last case a writ of error was denied. It is frequently said to he a special deposit where money is deposited for a specific purpose. However, we think it is generally held in such case a bank cannot permit money so deposited to be used or checked out for any other purpose than the specific purpose for .which it was deposited and accepted, or when the bank has notice of such purpose. But as we read the authorities, it would be liable on the contract to pay when the conditions are fulfilled. It could not .pay or permit the deposit, to be used for any other purpose. Unless there is an agreement to keep the deposit separate from the bank’s funds, it is customary to mingle it with those of the bank. In the absence of an agreement or direction, it will be kept as a general deposit, with the same liability on the bank to the depositor. There may arise a different question where the rights of third parties are concerned, or where the bank becomes insolvent, or the like. The authorities on this question, as we read them, are not in accord; but, for the purpose of this case, we think the deposit may be treated as creating the relation of debtor and creditor between the bank and Rudolph — at least to some extent. Meadors, by the agreement and by the acts of all the parties, had no control over the deposit after it was made, under the agreement. There appears to have been no agreement to keep it separate from other money, but it was a deposit made as are general deposits for specific purposes. Whether the fund so deposited shall be designated as a special or a dep'osit for a specific purpose, or whether the bank shall be treated as a trustee of such fund to hold the fund to await the determination of the suit over the land, or treated as a debtor upon the contract, yet it was nevertheless a new contract for paying the amount claimed by Rudolph, the bank by its contract agreeing to hold the fund in the name of Rudolph, and if the suit went in favor of Meador for the land to pay it to Rudolph. The bank recognized this liability so to' do by issuing a certificate of deposit. Rudolph accepted this certificate as evidence of the amount due by Meador, and used it as an asset in obtaining credit with another bank, and the jury found he made such an agreement, and Meadors under that agreement placed the money in the bank. The bank is clearly liable to Rudolph for the money if it paid the money in violation of its express contract with him. This transaction evidences an entire merger of Meadors’ original obligation into the contract which was subsequently made, and it is the contract upon which Rudolph must recover, if at all, and in fact on which the jury and the court below evidently decreed a recovery. His petition shows he had no vendor’s lien because Taylor had none. Meadors paid for all the land they ever got. There was due Taylor no unpaid purchase money, and hence none was due Rudolph. The uncontroverted evidence and the findings by the jury establish the* substitution of a new obligation between Rudolph and Meador to extinguish the old one, and also the substitution of a new creditor or obligor on the new contract. We think it cannot well be denied that the bank did assume an obligation to pay the money to whom it was due, as determined by the result of the litigation, and a violation of the obligation would render the bank liable to Rudolph. This being the contract upon which Rudolph was authorized to sue, we held that the venue of the suit was in Montague county, the acknowledged and admitted residence of Mea-dor.
The motion will be overruled.