
    Alfred S. Heldelbach, as Survivor, etc., Resp’t, v. National Park Bank of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 17, 1895.)
    
    1. Trusts — Deposit in bank.
    Where a person, holding money in a fiduciary capacity pays it to his account at his bankers and mixes it with his own money and afterwards draws out some by checks generally and in the ordinary manner, he must be taken to have drawn out his own, in preference to the trust money.
    2. Set-off — Unmatuiied claim.
    In the absence of a contract between the depositor and the bank, the latter has no right to retain the balance of a customer’s deposit to pay or apply upon an indebtedness of a customer to the bank, not yet matured.
    3. Same.
    Where a bank discounts for the apparent owner a draft and places the proceeds to his credit, without knowing that another person is entitled thereto, and, while part of the proceeds remains to the apparent owner’s credit, the real owner notifies the bank of his claim, the bank cannot set off against the latter’s claim to such balance a claim against the former on paper discounted before the draft, but maturing after notice of the latter’s claim.
    4. Remedies — Election.
    A party, who has several consistent remedies for the same debt, may resort to them all, though he can have but one satisfaction.
    Appeal from a judgment in favor of plaintiff.
    The plaintiff’s firm, on the 21st day of July, 1887, opened a credit of £10,000 sterling with 0. J. Ilambro & Son, who were their correspondent bank in London, in favor of E. S. Wheeler, under his firm name of.E, S. Wheeler & Go., the credit to be used for the purchase of merchandise in Europe. Thereafter, under said credit, Wheeler purchased in England, and shipped to the Hall & Willis Hardware Company at Kansas City, 600 boxes of tin plates, for which said O. J. Hambro & Son paid, under the authority of said letter of credit, the sum of £815. 8s. sterling, and took the bill of lading and consular invoice of the merchandise so purchased as evidence of title thereto. The bill of lading and consular invoice were, pursuant to the terms of credit, duly forwarded to the plaintiff’s firm, into whose possession they came about August 27, 1887, and in the due course of business plaintiff’s firm paid for the 600 boxes of tin plates. By virtue of the credit of £10,000 sterling, and tlie transaction to which we have referred had in pursuance thereof, the plaintiff’s firm became the owners of the tin plates on or prior to the date last named. After the plaintiff’s firm came into the possession of the bill of lading and invoice, and on August 27, 1887, they intrusted them, together with the merchandise represented thereby, to E. S. Wheeler & Go. upon the terms and conditions expressed in a contract or trust receipt, of which the following is a copy :
    “ New York, August 27th, 1887.
    “ Messrs. Heidelbach, Ickelheimer & Go. — Gents: We ac-
    knowledge the receipt from you of invoice and bill of lading of the following goods, viz. 600 boxes tin plates, equivalent of eight hundred and fifteen pounds eight shillings sterling, shipped by B. S. Wheeler & Co. on board the Douro at Liverpool (and the receipt by us of all the goods mentioned in said bill of lading); and we hereby agree to hold the said goods in trust for you as your property until the proceeds thereof are actually turned over to you ; such goods being subject to your order, and subject to your rights as owners thereof. The delivery to us of the said bill of lading shall not operate as a waiver of your ownership of the goods therein described, nor a waiver of the due performance of the agreement in the receipt signed by us for your letter of credit by cable, dated July 21,1887, or any other letter of credit under which said goods may have been purchased. And we also agree to keep such goods covered by insurance against loss or damage by fire, by policies made payable to you in case of loss or damage, and to deliver such policies to you, and to keep the same renewed and in force. And, for value received, we further agree that you may at any time enter any place where the said goods are stored, and without process of law take possession of them, and store them in your name at some other place, without any claim of us for trespass or damage for so doing Without detriment to or impairment of your claim and rights to the goods themselves, such claim and rights shall also attach to the proceeds thereof, which shall, to all intents and purposes, be your absolute property until full satisfaction by payment shall have actually been made to you under the agreement of receipt of said letter of credit.
    “ Yours, respectfully, B. S. Wheeler & Co.”
    On the same day, ,Wheeler, under his firm name, drew his sight draft upon the Hall & Willis Hardware Company, of Kansas City, to whom he had contracted to sell the 600 boxes of tin plates for the purchase price thereof, being the sum of $3,974.46. This draft he deposited at once in defendant's bank, with the invoice and bill of lading for the tin plates attached thereto, and the defendant credited Wheeler’s account with a sum equal to the face value of the draft, less $4.56 deducted for discount. August 30th following, the Hall & Willis Hardware Company paid the amount of said draft to the Armour Bros. Banking Company, defendant’s agents for collection at Kansas City. Three days later defendant received from its Kansas City correspondent a draft on the Mechanics’ National Bank of the city of New, York for the full amount of the draft drawn on the Hall and Willis Hardware Company, and said draft was paid to defendant by the Mechanics’ National Bank, September 5, 1887. • On the same day Wheeler failed in business, and ever since has been insolvent. Two days later, and on September 7th, plaintiff’s firm notified the defendants that they were the owners of the tin and its proceeds under and by virtue of the trust receipt, and demanded the merchandise or its proceeds, which demand was refused. The daily balances of Wheeler at the National Park Bank from August 27th to September 2d were in excess of the sum of $3,974.-46, which was the face value of the draft in controversy, but on September 2d Wheeler’s daily balance was reduced to $2,159.98. For each of the following days until after the service of the notice and demand by the plaintiff’s firm upon the defendant, which occurred September 7th, Wheeler’s daily balance at the defendant bank was considerably in excess of the amount of the draft. September 8, 1887, plaintiff’s firm brought suit against Wheeler, in the superior court of the city of New York, to recover a large amount of goods, including the 600 boxes of tin plates which were the subject of the draft in controversy, purchased by Wheeler under the letter of credit issued to him by the plaintiff’s firm. The summons was served by publication only, and Wheeler entered no appearance therein, and judgment thereafter resulted in the alternative form for the goods or damages, and the 600 boxes of the plates were included therein. In January, 1888, the plaintiff’s firm presented to the commissioners of the estate of Wheeler, in New Haven, a statement of account between them and Wheeler, which included the indebtedness arising from the draft for ¿6815. 8s. sterling, and subsequently plaintiff’s firm received several dividends from such commissions on account of such indebtedness, aggregating the sum of $655.70. Judgment went against defendant at special term for the amount standing to the credit of Wheeler on the books of the National Park Bank on September 2d, which was $2,159.98, less the sum of $665.70, received by the plaintiff’s firm from the commissioners of the estate of Wheeler.
    
      R. D. Murray, for app’lt; John K. Creevey, for resp’t.
   Parker, J.

Under the terms of the trust receipt the plaintiff’s firm were the owners of merchandise sold to the Hall & Willis-Hardware Company, and were entitled to the proceeds. If the defendant had knowledge of plaintiff’s firm’s ownership when it received the draft from Wheeler and credited his account therewith, plaintiff’s right to recover the full amount would not be questioned. But it is not pretended that the bank had any notice at the time it discounted the draft, on August 27th, or at any time thereafter prior to September, that Wheeler was not the owner of the tin plates, or that any trust existed in favor of the plaintiff’s firm. By delivering the bill of lading and invoice to Wheeler, the plaintiff’s firm clothed him with the apparent authority of an owner, which was sufficient to protect the bank in dealing with him as such; and, had it paid to Wheeler the full amount of the draft at the time of the discount, an action could not have been maintained for the recovery of any part of it. And this is so, because a person, having power to sell and deliver merchandise to a good faith purchaser, may resort to the usual agencies for realizing the purchase money; and it follows that when such agencies advance money in good faith, and in the usual course of dealing, they are entitled to the same protection as the purchaser of the merchandise. If, however, such agency has not parted with the moneys, or changed its position by reason of the transaction, the real' owner may invoke the rule of equity that, where a person holding money in a fiduciary capacity misuses or misappropriates, it, the real owner can follow it so long as he can identify it, until it comes into the possession of one who in good faith parts with value for it. And where, as in this case, the party seeks to trace the proceeds of the property after it had been deposited in a bank with the individual money of the depositor, it is sufficient for the purposes of identification, and to retain the character of the proceeds as trust money, to trace it into the bank, and to show that it was there at the time notice was given of the plaintiff’s rights. Upon this view the learned judge at special term proceeded ; and finding, as he did,- that at the close of business on the 2d day of September the credit balance of Wheeler at the defendant bank was $1,809.92, less the amount of the proceeds of the tin draft, he held that the defendant had to that extent made payment to Wheeler on account of the draft; but the balance of the draft, being $2,159.98, with which he had been credited by the defendant, was still in its hands. As Wheeler’s credit balance with the defendant at the close of business on each of the days following down to and including the 7th of September was greater than the sum of $2,159.98, the court decided that to such extent the moneys of the plaintiff’s firm must be held to have been in the possession of the defendant at the time the plaintiff’s firm gave notice to it that the moneys belonged to them. The rule established by the court in reaching such result was, not to apply the first drawings out to first payments in, as in Claytons Case, 1 Mer. 580, but it assumed, on the authority of In re Hallett's Estate (Knatchbull's Case), 13 Ch„ Div. 696, that Wheeler, in drawing checks against the blended account of his individual trust funds, intended to be honest, and to draw from his own funds first, leaving the trust fund intact; and, thus assuming, the conclusion was necessarily reached that he drew only $1,809.92 of the trust funds. The rule in Clayton's Case, which the defendant strongly insists is applicable to this situation, is stated by Sir William Grant, at page 608, as follows:

In such a case there is no room for any other appropriation than that which arises from the order in which the receipts and payments take place and are carried into the account. Presumably, it is the sum first paid in that is first drawn out. It is the first item on the debit-side of the account that is discharged or reduced by the first item on the credit side. The appropriation is made by the very act of setting the two items against each other. Upon that principle all accounts current are settled, and particularly cash accounts. When there has been a continuation of dealings, in what way can it bo ascertained whether the specific balance due on a given day has or has not been discharged, but by examining whether payments to the amount of that balance appear by the account to have been made ? ”

If that rule, without modification, should have been adopted by the trial court, the defendant would have been entitled to judgment. At the opening of business August 24th, Wheeler’s balance was $10,899.39. Adding to this balance the other credit items down to and including the deposit of the draft in question. on August 27th, Wheeler’s aggregate credits were $58,962.54. The rule in Claytons Case, would seem to be that the first debit items in the account must be treated as drawn against this credit aggregate. But the aggregate of the debit items from the beginning down to the close of business August 29th, nine days before the notice to the defendant by the plaintiff, was $62,314.58, being an excess of debit items over the aggregate of credits of $3,352.04.

■ We have been favored with an interesting and forceful argument by the appellant, intended to make it clear that the rule in Blayton’s Case, which antedates that of Knatchbull's Case, and which has prevailed for many years, should apply to this situation, rather than tile rule of the latter case : (1) Because it is said Knatchbull's Case is not good law. This fact, it is claimed, is evidenced by a long line of authorities in England, extending over many years, which apply the rule in Clayton’s Case to the facts which appear in Knatchbull's Case, as well as by the decisions of a court'of coordinate jurisdiction in Pennell v. Deffell, 4 De Grex, M. & G. 372. (2) That, if it be good law, the facts in that case and the one at bar differ so radically as to the point upon which Knatchbull's Case went as to prevent its being considered applicable. In support of the latter proposition attention is called to the opinions in Knatchbull's Case, in which the rule in Clayton’s Case was assumed to be. the general rule, the exception being -where there are circumstances sufficient to create a presumption that the depositor did not intend his first checks to "be paid out of his first deposit. The trustee in that case in drawing moneys out of the blended account never reduced his balance below the amount of the trust moneys paid in, and the judges were of the opinion that the trustee should be presumed to have been honest, and not dishonest; and therefore lie could not have had any other intention than that of appropriating his drawings to his own private moneys, so as to -leave the trust moneys intact. Thus it is contended the presumption which arose in Clayton’s Case was rebutted in Knatchbull's Case by the presumption of the honesty of the trustee. Butin the case .at bar the presumption in Knatchbull's Case does not arise, because on the very day that Wheeler deposited tjie draft he drew out $195.13 of it, and afterwards made further drafts, by which still larger sums were drawn out. Hence it is urged that the facts upon which Knatchbull's Case went were not present, and this case should be remitted to the rule of Clayton's Case. Were we at liberty to regard this question as an open one in this state, we should feel called upon to carefully consider the arguments which we have merely suggested, but it seems to us that the question now presented was passed upon in Importers' & Traders' National Bank v. Peters, 123 N. Y. 272; 33 St. Rep. 182. In that case the court said that, where a person holding money “in a fiduciary capacity pays it to his account at his bankers, and mixes it with his own money, and afterwards draws out some by checks generally and in the ordinary manner, the drawer of the checks must be taken to have drawn out his own in preference to the trust money. The rule attributing the first drawing out to the first payment in does not apply to such a case.” The eonclu■si.on being reached that there was in the hands of thé defendant a sum of money belonging to the plaintiff’s firm on the 7th day of September, when notice of plaintiff’s rights thereto was given to the defendant, it would seem unnecessary to cite authorites in support of the proposition that the defendant cannot set off, against such balance, an unmatured claim held by it at that time against Wheeler. Three days later, a draft, which had been discounted by the defendant for the benefit of Wheeler, matured, and was not paid, and thereafter, during the two following months, several drafts, upon which Wheeler was liable, matured; but all of this paper was discounted prior to the deposit of the draft which occasions this controversy, and therefore it in no wise, influenced the defendant to discount the paper which it now seeks to set off. As to such paper the defendant’s position was neither changed nor affected by the discount of the tin draft, and therefore it is not entitled to set off such claims as against money in its hands belonging to the plaintiff’s firm, but credited to Wheeler, even though it be conceded that it would have had that right, as against Wheeler had such balance belonged to him, instead of plaintiff’s firm. Nor does the defendant’s claim seem to be well founded that the plaintiff cannot recover such, portion of the money as it is found was in the defendant’s possession on the 7th of September, because the defendant has a banker’s lien upon the balance to the credit of Wheeler’s account. - It is not claimed that Wheeler, by any formal act, applied the proceeds of the draft to the payment or security of the unmatured paper, or that there was any agreement or understanding between Wheeler and the defendant to that effect. Defendant’s claim of lien, therefore, is founded solely on its claim that it had a right to apply the proceeds remaining in its hands to the credit of Wheeler on the 7th of September as security for the unmatured paper which it had discounted at the instance and request of Wheeler. This proposition was met and decided adversely to the appellant’s present contention in Jordan v. Bank, 74 N. Y. 467. It was there held that, in the absence of a contract between the depositor and the bank, the latter has not a right to retain the balance of a customer’s deposit to pay or apply upon an indebtedness of a customer to the bank not yet matured, and, so far as we have observed, the authority of this case has in no wise been shaken or modified by subsequent decision.

The appellant further insists that the doctrine of election between inconsistent remedies should have prevented a recovery by the plaintiff. Morris v. Rexford, 18 N. Y. 555; Greton v. Smith, 33 id. 245; Bank v. Beale, 34 id. 473; and other cases, — are cited, in support of the proposition that where there are two absolutely inconsistent remedies, the parties are not entitled to enforce both, and the election of one precludes a resort to the other. An elem tian once made is determined forever. Moller v. Tuska, 87 N. Y. 166. It may be determined by any decisive act made with full knowledge of all the facts. Fowler v. Bank, 113 N.Y. 450; 23 St. Rep. 130. And the bringing of an action to enforce one of the remedies sufficiently evidences an election. Conrow v. Little, 115 N. Y. 387; 26 St. Rep. 527. Now, the acts of plaintiff’s firm which defendant insists establish satisfactorily and conclusively that between two inconsistent remedies the plaintiff’s firm made, an election prior to the commencement of this action, are,- briefly, that on September 8, 1887, — the day following the giving of the notice to the defendant’s bank, — plaintiff’s firm commenced an action in the superior court of the city of New York against Wheeler to recover possession of a large amount of property, including the 600 boxes of tin, the proceeds of which are now in dispute. Appellant says that this action went upon the theory that the tin was the property of Wheeler, and in affirmance of his ownership of the draft, and thus inconsistent with the claim that the proceeds of the tin are the plaintiff’s property, upon which theory this action proceeds. But the appellant seems to us to be - inaccurate in this position. An examination of the complaint makes it clear that the action was brought upon the theory that plaintiff’s firm were the owners of the tin, and entitled to the possession of it. Both that action and this alleged Wheeler’s indebtedness to plaintiff’s firm; that the 600 boxes of tin were the absolute property of plaintiff’s firm, and would so continue until full satisfaction by payment should be actually made under the trust receipt. The other > fact relied upon to establish an election is that plaintiff’s firm, with full knowledge of the misuse of the draft in question, and before the commencement of this action, presented to the commissioners of Wheeler’s estate in the state of Connecticut,- who had been appointed to pass upon the claims against said estate, proof of a claim against Wheeler, under which dividends were after-wards paid to the plaintiff’s firm aggregating $665.70. It may be said in passing that this sum was deducted from the amount of the draft, in addition to the deduction already spoken of, made because to that extent the fund had been drawn out of the bank. The deduction was made by the trial court because it felt constrained to do so, owing to a stipulation contained in the record. This ruling of the court is not challenged, and need not be further alluded to. Now, it is urged that plaintiff’s firm, on the 7th of September, had two remedies, either one of which they could resort to, but not' both, because they were inconsistent. These remedies were: First, to treat the 600 boxes of tin as plaintiff’s property, and follow it or the proceeds; second, to ratify the action of Wheeler in selling the property and treating the proceed as his own. and proceed against him for the' purchase price. The case of Banks v. Beale, 34 N. Y. 473, is specially invoked because of the alleged similarity of its facts to the case át bar. In that case a vendor, who was defrauded in the sale of goods, after being apprised of the fraud, took judgment against his vendee under the contract of sale, and when afterwards he attempted to follow the goods or proceeds into the hands of third persons on the ground that the goods were obtained from him through fraud the court held that he had made his election to affirm the contract, and could not, therefore, proceed in disaffirmance of it. But it will be observed that the vendor’s position in one action was that he had made a valid contract with the vendee, under which delivery of the goods had been made, which entitled him to recover the pur■chase price; while in the other it was that the alleged contract between himself and the vendee was absolutely void, and no contract at all, because of the fraud of the vendee. In other words, to maintain one action it was necessary to prove a contract, and to maintain the other that there was no valid contract. If the circumstances surrounding the transaction out of which this action grows presented a similar situation, the appellant’s position would be well founded. But here every step which has been taken, whether in the action in the superior court, in the presentation of claims against the estate of Wheeler, or in the commencement of this action, is in affirmance of the contract between plaintiff's firm and Wheeler. It presents a case where plaintiff’s firm has two or more consistent, instead of two or more inconsistent, remedies. And a party having several remedies for the same debt may resort to them all, although he can have but one satisfaction. Gambling v. Haight, 59 N. Y. 354. In the contract, or “trust receipt," as it is called, between Wheeler and the plaintiff’s firm, it was provided that the goods purchased under the letter of credit and the proceeds “shall, to all intents and purposes, be your absolute property until full satisfaction by payment shall have actually been made to you under the agreement or receipt of said letter of credit.” This was in furtherance of the original trust agreement, signed by Wheeler & Co. upon receiving the letter of credit for £10,000 sterling. ’ Therein Wheeler agrees:

“To provide you here, fifteen days before the maturity, respectively, of the bills drawn under such letter of credit, with sufficient funds in currency of the United States to meet such bills as they become due, together with your commission upon the amount of sueli bills, which it is agreed shall be one-half of one per cent. We also agree to give you security here for the amount of such bills at any time previous to their maturity, if required by you to do so. All property which shall be purchased by means of the above credit, and the proceeds thereof, and the policies of insurance thereon, "x" * * are hereby pledged and hypothecated to you as collateral security for the fulfillment of this agreement on our part.”

By the contract, then, it was provided that the ownership of the merchandise and the proceeds thereof should continue on the plaintiff’s firm until Wheeler should pay to them the original purchase price. Its legal effect was to make Wheeler the debtor of plaintiff’s firm for the moneys advanced in payment of the merchandise purchased by him and plaintiff’s firm, the owners of the goods, until full payment should be made. Moors v. Kidder, 106 N. Y. 32 ; 8 St. Rep. 877; Drexel v. Pease, 133 N. Y. 129-136; 44 St. Rep. 264. Under their contract, therefore, plaintiff’s firm had the right to sue Wheeler for his debt, and in the same or another action enforce their rights as owners of the goods. The judgment should be affirmed, with costs.

All concur.  