(dissenting).
I regret that I am in disagreement with the statement in the leading opinion that the only reasonable inference which is warranted by the circumstances is that respondent was made a co-payee of the check to enable it to collect whatever amount might be' owing it by Drake. The maker of the check did not even so claim in the testimony of its official.
The check was for a substantially larger amount than the indebtedness, but suppose it had been in the exact amount of the account or in a smaller amount, would respondent have been bound at its peril to require the payment of all of the proceeds of the check to it, although Drake was made a co-payee of the check and the drawer marked it “advance on contract,” and delivered it to Drake? If so, why, then, a joint check and delivery of it to Drake? Drake had the contract upon which the “advance” was made, not respondent.
*122Respondent’s manager, Mann, testified that in the interview between, him, Bryan, and Drake, he did not ask tor payments oi the account in full, and did not expect' it, but merely' requested a substantial payment on the -áccount or, as the witness expressed it again, “a little money.” This was corroborated by Bryan who testified that Mann did not ask for payment in full but, quoting from Bryan’s testimony, “He did not say specifically whether he was asking for one dollar or all of it, sir.”
It was not unusual that Mann should interview Bryan about accounts for materials that went into the contract of Bryan’s company. On that point Bryan testified as follows:
“From time to time, sir, the duration of the job, up to that time on the job, he (Mann) had mentioned to me about accounts, not only of Drake, but of some other fellows who had been purchasing stuff there. * * *”
But this was the only jointly payable check which was issued.
Mann testified that he had no notice from appellant that he was expected to collect Drake’s account in full out of the check; and if he had been given such notice, he would not have authorized the endorsement of it without collection of the account in full.
To me there is significance in the fact that the check was not delivered to respondent, but to Drake. If it had been intended for payment in full of respondent’s account, would it not have been sent to respondent instead of to Drake?
The decision means that it was necessary for respondent to exact full payment of its account from the check, when it had not requested and did not expect that; and the account had never been liquidated before; it was a running account and a good one, upon which only a partial payment had been made before. It would have been unnatural for respondent to require payment in full in the midst of the job, and unfair for the law to require that course in the absence of facts which do not appear from the evidence in this case. *123It was a “government” contract, with a bonded contractor, which surely justified the extension of credit.
I think that the claimed negligence of respondent, whereby it is concluded that estoppel arose, was at most an issue for the jury, as were the issues of waiver and intent of the parties. There is no contention of error in the instructions to the jury, under which the issues were submitted, and I would not disturb the verdict. The jury may reasonably have concluded that the maker of the check was negligent or failed in its duty in not notifying respondent that it was required that the account be collected in full out of the check, although such a demand had not been made by respondent, or expected by it.
Nor do I agree that the principle of “two innocent parties” is applicable. None of the authorities which are cited to the point in the leading opinion was concerned with a performance bond or with other facts parallel to those in this case. Drake defaulted and abandoned his subcontract. It was the payment of his obligations that appellant guaranteed.