Cunningham v. Bank of Nampa, Ltd.

AILSHIE, C. J.

This action was instituted by the plaintiff Richard Cunningham as trustee for a number of persons named in the complaint, against the Bank of Nampa, Ltd., a corporation, J. C. Nichols, sheriff of Canyon county, and the United States Fidelity and Guaranty Company, a corporation, bondsman for the sheriff, to recover the sum of $913.24, the amount of damages claimed to have been sustained by the cestuis que trustent. The defendants demurred *170 to the complaint and the demurrer was sustained. Plaintiff thereupon appealed from the judgment. The facts disclosed by the complaint are substantially as follows:

That Richard Cunningham is an attorney at law, and as such has collected the money sought to be recovered from different persons on notes and accounts in favor of his several clients for whom he was acting as agent or trustee in the collection and transmission of the proceeds of the several notes and accounts. lie alleges that he had an account with the defendant bank in which he deposited all the moneys collected, by him for his clients in the name of “Richard Cunningham, Atty.” It is alleged that this was a special account of trust funds against which he checked in payment of the various clients whose moneys he had therein deposited. It is charged that the bank had knowledge and notice of the nature and character of the fund thus deposited, and that the same was not the money or property of Cunningham. During this time, while the money was still in •the bank, one Henry W. Leman, who held a judgment against Cunningham in the state of Nebraska, brought an action on such judgment in Ada county, Idaho, and caused a writ of attachment to be issued against the property of Cunningham, and delivered that writ to the sheriff of Canyon county, who served it on the defendant bank and attached the fund and account therein held in the name of “Richard Cunningham, Atty.” Plaintiff Cunningham thereafter demanded in the name of his alleged cestuis que trustent the delivery of the money theretofore deposited and upon which the writ of attachment had been levied. The bank refused to turn over the fund and a like demand was made of the sheriff, who also refused, and thereupon this action was commenced. The bank demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Nichols and the guaranty company demurred upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and also upon the ground that there was a misjoinder of parties defendant, in that the bank was not a proper party defendant in the action. The demurrers were *171 sustained and judgment was entered in favor of the defendant.

The only question to be determined by us is: Does the complaint state a cause of action? For the purpose of determining the question before us, all the material allegations of the complaint must be taken as true. It is a fundamental principle both of law and justice that .the debtor’s property, and his property alone, is liable for the payment of his debts. It is conceded that Cunningham was indebted to the attaching creditor. If the money and account in the defendant bank was the property of Cunningham, it was unquestionably liable for the payment of his debt and subject to attachment therefor. If it was not his money and property, it is equally clear that it was not liable for his debt. If Cunningham after collecting this money had taken it in kind as collected to the bank for the purpose of purchasing drafts to his several clients for remittance to them, and while the money was on the bank counter and prior to the receipt of the draft and delivery of the money to the bank, it had been attached by the sheriff, it would not have been seriously contended, we apprehend, that the money could be held under this attachment for the payment of a debt owed by Cunningham. The deposit of the money by Cunningham with the bank could give him no better title to it than he had before the deposit, and certainly an attaching creditor cannot, through his attachment process, acquire any better title to the property than the debtor has. (Thomas v. Hillhouse, 17 Iowa, 67 .)

Some confusion has been injected into the case by reason of a discussion as to the liability of the bank to pay the fund to Cunningham upon his check. The word “Atty.” after the name of “Cunningham,” as the account was entered in the bank, was a mere descriptio personae, and did not serve in any manner to disclose the name of his principals or the cestuis que trustent, and as between Cunningham and the bank it was unquestionably the duty of the bank to pay the money to Cunningham upon his demand or the presentation of his check at any time prior to the service *172 of the writ of attachment. It is also equally clear that if the bank had no actual knowledge of the trust relation existing and the character of the fund so deposited, it would have been fully justified in paying the money over to the sheriff upon the service and levy of the writ of attachment. If it should appear that the bank did so, and that it had no other knowledge or information as to the character and ownership of the fund except the designation of “Atty.” after the name of the depositor, it will have established a complete defense to the action, and would be entitled to release and discharge from further liability. But the question as to the liability of the bank to Cunningham personally, and of the relation the bank itself sustained toward the fund, cannot be taken as the test of responsibility in the present action. The plaintiff in this action sues, not in his individual capacity, but as trustee for the several clients interested in the fund. He alleges that he has no interest in the money and account other than that of transmitting and delivering the same to his several clients in the -amounts designated in his complaint. If previous to the demand and the commencement of this action the bank had in good faith parted with the fund in the due course of legal proceedings and under the belief and understanding that the money was the property of Cunningham, as it would have had a right to believe in view of the nature of the deposit, then and in that case its liability had ended; but if it still holds the fund at the time it is notified of the true and beneficial ownership therein, as soon as that ownership and right of possession is established, it will become the duty of the bank to pay the money in accordance with the true state of facts and condition of the fund. (Des Moines Cotton Mill Co. v. Cooper, 93 Iowa, 654 , 61 N. W. 1084 ; Central Nat. Bank v. Life Ins. Co., 104 U. S. 54 , 26 L. ed. 693; Van Alen v. American Nat. Bank, 52 N. Y. 1 .)

It has been argued that the bank was improperly joined as a party defendant. We do not think this ground of demurrer well taken for the reasons above stated. If upon the trial the deposit should appear to be still in the hands *173 of the bank, the bank will be liable to account to the successful party therefor. If, on the contrary, the fund is shown to have passed in good faith from the hands of the bank, then the bank will no longer be liable.

It has been argued that the plaintiff Cunningham could not maintain this action as trustee for the several parties named without also joining the cestuis que trustent in their individual capacities. The case coming here on demurrers, and that question not having been raised by the demurrers or in any other proper manner, we are not called upon to decide that question. It is clear, however, that the several beneficiaries named are' proper parties plaintiff (First Nat. Bank v. Hummel, 14 Colo. 259 , 20 Am. St. Rep. 257 , 23 Pac. 986 , 8 L. R. A. 788; Rev. Stats., secs. 4090, 4092), and it would seem upon first blush that they are necessary parties.

As we view this case, the demurrer should have been overruled. None of the grounds alleged in the demurrers were well taken. The judgment will be reversed and the cause remanded for further proceedings in harmony with the views herein expressed. Since the question of parties plaintiff will undoubtedly arise again in the lower court, we suggest at this time that the plaintiff be allowed, if he so desires, to amend his complaint by bringing in each cestui que trust in his individual capacity as a coplaintiff.

Costs are awarded in favor of the appellant.

Sullivan, J., concurs.