This action in assumpsit was brought by Eleanor G. Dickson, plaintiff, against Commonwealth Trust Company of Pittsburgh, defendant, to recover the full *Page 614 balance in cash of the principal of an inter vivos trust created by her husband. A case stated was filed and, after argument, the learned court en banc held that defendant is not required to repay the principal of the trust in full in cash, and entered a judgment for defendant. Plaintiff appealed.
The following facts are agreed upon in the case stated: On June 9, 1928, plaintiff's husband deposited with defendant $75,000 in cash under a written agreement, signed by defendant's trust officer, which acknowledged receipt of the money and fixed the character of investments in which defendant would place the money as first mortgage participations. The agreement further provided: "This money is accepted [by defendant] with the understanding that withdrawals may be made by . . . [plaintiff's husband] in the sum of $10,000, or less, at any time on 30 days notice and for larger amounts than $10,000 60 days notice. This agreement, subject to withdrawal provisions abovenamed, may be terminated by . . . [defendant or plaintiff's husband] at any time on 10 days notice." (Italics added). In 1929 an additional $5000 was deposited under the agreement and three years later $2500 was withdrawn by plaintiff's husband, leaving a balance in the hands of defendant at that time of $77,500. This entire balance was invested in Commonwealth Mortgage Pool No. 2. On April 16, 1934, the Orphans' Court of Allegheny County entered an order taking custody and control of this mortgage pool and directing its liquidation. From that date until November 11, 1938, when plaintiff's husband died leaving his entire estate to plaintiff, under the liquidation order a total of $23,250 was distributed in five installments on account of principal. In 1940 plaintiff sought withdrawal of $10,000 and defendant granted this request by purchasing from her $10,000 of her participating interest. Thereafter, liquidating dividends of $27,900 on the initial investment were distributed, of *Page 615 which $10,000 was paid to defendant under the assignment, and the remainder to plaintiff, leaving an unpaid balance in her favor of $26,350. Plaintiff notified defendant in December 1945, that she elected to withdraw in cash the unpaid balance of the principal deposited under the terms of the agreement of June 9, 1928. Upon defendant's refusal to pay her that sum, plaintiff brought this action.
The learned court below held, as defendant here contends, that there is nothing in the written agreement requiring defendant to repay the principal sum in full in cash and that plaintiff's sole right is to receive liquidating payment in accordance with her participating interest in the pool.
It is well settled that where a trust agreement of this character sets forth the value of the original deposit and contains an express promise to repay the principal sum, the trustee is under a duty to repay the amount originally transferred to it: Cunningham's Estate, 328 Pa. 107,195 A. 130; Fortna v. Commonwealth Trust Co., 341 Pa. 138, 19 A.2d 57. See also Lacy's Trust Estate, 342 Pa. 223, 19 A.2d 380. On the other hand, an agreement to repay the "fund" (Crick's Estate,315 Pa. 581, 173 A. 327) or to pay the principal sum "in cash or securities" (Lacy's Trust Estate, supra) does not impose the obligation on the trustee to repay in cash the full amount deposited. See also, Cohen v. Bank of Wilkes-Barre, 337 Pa. 388, 10 A.2d 392. Thus, the solution of the present problem depends upon the intention of the parties as expressed in the agreement of June 9, 1928.
This agreement clearly states: "This money is accepted with the understanding that withdrawals may be made . . ." It is perfectly clear that the words "This money", were intended by the parties to refer to the $75,000 which plaintiff's husband then deposited with defendant. The plain meaning of the language used in this agreement, which was drawn by defendant's own *Page 616 trust officer, is that the money was accepted by defendant for investment, subject to the withdrawal of all, or any part of this money upon giving defendant the agreed notice.
The lower court relied on Crick's Estate, supra (p. 583). In that case the agreement under consideration provided that upon revocation plaintiff "shall . . . be entitled to payment offunds so withdrawn by him . . ." (Italics added). This Court there held that the donor could not legally demand the return of the principal of the trust in cash. Here, however, the agreement provides for the withdrawal of "money". "Funds" is a broad term which encompasses choses in action, as well as cash. But "money", in the absence of a clear expression to the contrary, must be given its usual meaning of "cash" or "currency". See, for example, Clabby's Estate, 338 Pa. 305,12 A.2d 71. Crick's Estate, supra (p. 584), is not controlling, for there we said: "Had the trust agreement specifically stated that donor might demand cash, a different situation would be presented, but no such question is involved in this appeal."
Defendant urges that to construe the language of this agreement to mean that defendant is legally bound to return the full balance of the deposit in cash is to place upon it a burden out of proportion to the compensation received. However, defendant at all times had the right to terminate this trust.
This Court, speaking through Mr. Justice LINN, stated inOsterling v. Commonwealth Trust Co., 320 Pa. 67, 71,181 A. 769: "If it found that mortgage investments could not be made or continued on such terms, it should have exercised its right of revocation and returned to plaintiff the sum received under the contract. If, after making the investment, it neglected to perform its obligations, with consequent depreciation as now averred in defense, it cannot shift the resulting loss to plaintiff." *Page 617
The conduct of the parties with respect to this agreement clearly shows that our conclusion is in full accord with their intent. In 1940 plaintiff withdrew $10,000 and made an assignment of that amount of her participating interest to defendant. That assignment was not as collateral for a loan, but was a relinquishment of that portion of her interest in the pool, in accordance with her withdrawal. At that time no question was raised as to plaintiff's right to make such cash withdrawal. On the contrary, defendant recognized its obligation under the agreement to repay that sum. By no stretch of the imagination could the language of the agreement be interpreted to mean that it was the intent of the parties to bind defendant to repay any portion of the money but not to compel it to repay all of the money.
It is clear that by the express language of the contract, as well as the acts of the parties with reference to it, plaintiff is entitled to the payment in cash of the full balance in the account.
Judgment reversed; and judgment is here entered for plaintiff in the sum of $26,350, at defendant's cost.
Mr. Justice ALLEN STEARNE dissents.