Whether the paper headed "Certificate of Deposit" signed by the Home Trust Company was written on a separate piece of paper from the contract between plaintiff and the defendant, "The Service Association, is immaterial. The petition alleges that the contract, upon which this suit is based, consists of an agreement between plaintiff and The Service Association, together with the so-called certificate of deposit. Evidently from the language used in the latter it refers to the former. The former contains a clause reading as follows:
"As evidence of Good Faith The Service Association has deposited with the Home Trust Company a reserve fund, which is placed in a that we have set aside as a reserve to pay same in satisfaction of any claim in accordance with this guarantee."
The part of the agreement signed by the trust company reads as follows:
"CERTIFICATE OF DEPOSIT "TO THE MEMBERS: Kansas City, Mo., August 1, 1923.
"This is to certify, That The Service Association has on deposit with the Home Trust Company of Kansas City. Mo., a special fund SPECIAL account for the purpose of paying any claims in accordance with the above guarantee.
"HOME TRUST COMPANY, "W.H. BRAMWELL, Vice-President, "Member's Business __________________________________________"
It is not clear that the two writings construed together show an intention upon the part of the Service Association to create an express trust in favor of plaintiff and others similarly situated, the trust company holding the "special fund" or the "reserve fund" as trustee. It is well settled that in order for an instrument to create an express trust, it is necessary that it must do so in clear, explicit definite and unequivocal terms, that the intention to create the trust must be plain. [39 C.J. 58; Skeen v. Marriott, 22 Utah, 73; Knapp v. Publishers, George Knapp Co., 127 Mo. 53.] I do not think that the writings relied upon to create an express trust in the case at bar measure up to this requirement. The agreement is susceptible to the construction that the Service Association, to evidence its good faith, had set aside a special fund to pay claims that would naturally arise under the contract with persons using its service out of which it, The Service Association, would pay such claims. The writing signed by the Trust Company was merely to show prospective users of the service that such a fund had been created by the Service Association. *Page 322 It does not clearly appear from these writings that the Service Association was not to have control of this fund, and if such control remained in it, the trust company did not become a trustee for plaintiff and persons in a like situation. It is therefore immaterial as to what the fund consisted of, whether of money or property. It follows that plaintiff is not entitled to maintain this suit.
I place my concurrence upon what is said in the concurring opinion alone.