With a full realization of the futility of dissenting opinions, generally, and a recognition of the soundness of every rule of law and evidence laid down in the majority opinion in this case, still, I find myself unable to concur in the opinion and respectfully dissent, believing that the case should have gone to the jury on the evidence.
The evidence showed that the defendant, Miss Rawlins, while an employee in the office of the plaintiff trust company, bought and paid for certain lots of Palolo land, sold to her by her employer, the trust company, acting as the sole selling agent of Kaimuki Land Company, Limited, a mere holding company, owned (except as to a share each to a required number of directors) by R.W. Shingle and A.N. Campbell. Evidence showed that when Miss *Page 887 Rawlins entered the employ of the trust company, in 1909, Mr. Shingle was the president of that company and Mr. Campbell was its treasurer, and the evidence tends strongly to indicate that these two gentlemen continued in executive or managerial charge of the affairs, course and business policies of the trust company, in and around its offices, during the years of Miss Rawlins's employment in its offices; that, after the time when defendant purchased the land, Mr. Campbell was recognized in the office as the spokesman for the trust company concerning withdrawals of deposits of money made with the company by employees and it was known that Mr. Campbell consulted with Mr. Shingle concerning the direction of some of the affairs of the company.
Evidence showed, in effect, that after the defendant had held the land a short time Mr. Steere, the manager of the land department of the trust company, told her that Mr. Campbell had said to him that a Mr. Newton had complained about the sale to her, and later Mr. Campbell informed her that Mr. Newton was complaining that the trust company had sold the lots to her for $4800 less than he had offered and was willing to pay for them and that he, Campbell, was afraid that this would bring about a renewal of past criticisms against the trust company in its dealings, unless Mr. Newton could be satisfied. Defendant being desirous of protecting the name and transactions of the trust company, offered to sell the lots at the price offered by Newton and made it clear that she would not sell for less, and expressed a desire to deal directly with Newton, but Mr. Campbell represented to her that the best course in the protection of the trust company would be for her to deed the land back to Kaimuki Land Company, Limited, so that its deed could be given to Mr. Newton, the selling transaction to Newton to be through the trust company. The course directed by Mr. Campbell was followed and her deed was made to the land company, naming the consideration as $3200, the price she had paid, *Page 888 there being a clearly inferable understanding between her and Campbell, according to her testimony, that the sale price to Newton, $8000, when collected by the trust company, would be due to her, would be her money, and she understood from her talk with Campbell that this sum would be credited to her account by and with the trust company. The trust company made the sale to Newton, delivered to him the deed of Kaimuki Land Company and received the purchase money of $8000. This was substantial evidence of an express trust in the trust company of the fund of $8000, with Miss Rawlins as cestui que trustant. Mr. Campbell represented to her that he was speaking for and acting in behalf of the trust company in making the deal with her and she, an employee in the office for years and apparently familiar with its open affairs and the manner and authorities through which it transacted business, accepted the apparent authority of Campbell to bind the company in a deal which would cost it nothing and was represented to be for its benefit.
There was some evidence tending to show that Mr. Campbell never intended to create a trust on the part of the trust company and later intended to repudiate any idea that one had been established. He instructed the manager of the real estate department of the company that Miss Rawlins had nothing on deposit with the trust company, and told her that he had sold her the land too cheap, and later told her that Mr. Shingle had said that he was willing that they should allow her a profit of $500, only.
The sale to Newton occurred December 18, 1923. At that time and long prior thereto and continuing thereafter until March 31, 1931, Miss Rawlins had an account, or accounts, with the trust company, arising in part from credits of salary from month to month and in part from cash deposits made by her, and the credits of interest and proceeds of sales and earnings of property and securities, made and received for her account; against this she drew *Page 889 cash, ordered purchases made for her of merchandise and securities, or the payment of purchases made by her, and was debited with interest charges for sums owing by her to the trust company. The trust company showed by evidence put in by it that its accounts with her were kept as three or more separate accounts under different ledger headings. She testified that she did not know that the company kept more than one account covering all of her transactions with it. The company introduced in evidence her receipt for the closing of a "special" account, which its books showed contained a credit to her for $3200 directly following the sale of the Palolo lots to Newton. She testified that she did not know what the trust company had done with the $8000 it received from the sale, but had never intended or knowingly given it any acquittance of its liability to her for that amount. Apparently there was no balancing or stating of accounts, generally, between them for a number of years. No showing of such statements was made and the account or accounts, in part at least, continued as open, current and mutual accounts, thus tending to remove a question of the running of the statute of limitations against her claim.
There was, in my opinion, sufficient evidence to have sustained a verdict upon findings by a jury that through the management of the trust company, and for the apparent and stated benefits and purposes of the trust company, she was diverted from dealing directly with Mr. Newton and induced to deed her land back to the original title holder so that upon the record it might be conveyed to Mr. Newton as a purchaser from the original owner, and that the $8000 collected from him by the trust company was at all times defendant's money, and that the evidence of disavowal or repudiation by the trust company following these transactions was not brought to her intelligence with sufficient clarity and certainty, in view of her situation as an employee under the managing officers of the company, as to cause her as a reasonably prudent person, *Page 890 exercising reasonable diligence, to believe that the full payment would not finally be forthcoming to apply against the note that an employee of the company in charge of its stock and bond department had induced her to make to the company in the purchase of stocks.
The judgment appealed from should be set aside and the cause remanded to the trial court for a new trial.