Sargeant v. Downey , 49 Wis. 524 ( 1880 )

Taylor, J.

We are of the opinion that the municipal court was right in holding that no defense to the plaintiff’s action was shown in the answer. The plaintiff’s complaint, without stating any quantity of milk delivered -under his contract with the defendant, received by him and manufactured into cheese, and sold by him, alleges that he furnished a quantity of milk under the contract, which was received by the defendant, manufactured and sold, and the money received by the defendant and converted to his own use, and alleges the amount so con-veiled to be tbe sum .of $84.23. Under this complaint, the pleadings not being verified, if the defendant had made default, the plaintiff would have been compelled to prove the amount of money received by the defendant for the cheese manufactured out of his milk, and sold by defendant, before he could recover; and as the answer expressly admits that the plaintiff did deliver milk to the defendant, that he did manufacture it into cheese, and did sell such cheese and receive the money therefor, and did not account to the plaintiff for the money so received, but deposited it in the Waupun bank, which became insolvent and failed before the plaintiff demanded the same of him, whereby the money was lost, and sets up this loss as a defense for hot accounting to or paying the same to the plaintiff, it seems very clear that the plaintiff’s cause of action is expressly admitted, except as to the amount claimed in dollars and cents, and that amount the plaintiff would be compelled to prove whether there was an answer in or not. The answer having admitted the plaintiff’s cause of action, unless it also contains facts which, if proved, would excuse the defendant from accounting to the plaintiff for the money received by him on the sale of the cheese, it does not state facts constituting a defense.

The facts alleged, by way of excuse for not paying over the money, are, that it was. his custom to deposit the money received by him on the sale of the cheese manufactured from the milk of his patrons in the Waupun bank, in his own name, and to his own credit, and, at stated periods, when he ascertained the amount due to each patron, to pay that amount by his check on the bank, and that he kept the money so received on deposit in the bank separate from his other funds; but he does not allege that this fact was known to any of his patrons, nor that it was known to the plaintiff;, and the allegation that he paid his patrons in his own checks on the Waupun bank would not tend to prove any notice to his patrons that he kept the money derived from the sale of the cheese of bis patrons as a separate fund in said bank. It seems to us quite clear, that, unless there was an express or implied agreement on the part of the patrons of the defendant that he should deposit in the bank in his own name the money received on the sales of cheese manufactured from their milk, there can be no pretense that in case of loss of the money the loss should fall upon them. When the agent deposits in his own name the money of his principal in a bank, without an express or implied authority from the principal to do so, such deposit is a conversion of the money to the use of the agent, as much as if he loaned the same to his neighbor and took his note for it. The dejsosit is a loan to the bank, and the depositor becomes the creditor of the bank for the amount of his deposit. When, therefore, the agent deposits money of his principal to his own credit in a hank, or loans it to an individual, unless it be done with the consent of the principal, the agent takes all the risks which attend such deposit or loan. Story on Agency, § 208, note 2, and cases cited. As there is nothing in the answer which shows, or tends to show, that the deposit in the Waupun bank was made with express or implied assent of the plaintiff, the failure of the bank is no excuse for the non-payment of the money to the plaintiff.

By the - Court.— The order of the municipal court is affirmed, and the cause remanded for further proceedings according to law.