The testimony on behalf of the plaintiffs that the services involved were not within the field of the usual duties for which they were compensated by First National Bank by annual salary seems clear and convincing. These were in the nature of emergency services which were incident to general economic stress which bore heavily upon the First National as upon many other financial institutions. The special services (referred to in the opinion as extraordinary) would have afforded basis for right of action against said bank. They were rendered day by day for a period of about six months, and, in my judgment, constituted part of the "overhead of operation" existing at the time the defendant "took over" the affairs of the First National. And just as the defendant correctly deemed itself obligated to discharge, and did discharge, other liabilities of the First National, incident to operation, so, I think there is like obligation as to plaintiffs' claim, though the balances due on none of said operating liabilities appeared on the books of the First National.
I think the plaintiffs should recover on their claim. Therefore, I respectfully dissent from the court's opinion and decision. *Page 79