#### Boyle (Plaintiff) and others (Interveners), Respondents, vs. Northwestern National Bank of Superior, imp., Appellant.

*May 2*

October *3, 1905.*

*Bailments: Sales on commission: Deposit of proceeds: Trust funds: Banks and banking: Offset.*

1. A corporation, of which S. was president, engaged in the commission business, became insolvent and ceased doing business. Thereafter S. engaged in the commission business, using as a designation the same name as that of the insolvent corporation. *Held,*that the commission business in which S. was last engaged was his personal business and not a continuation of the business of the corporation.

2. In such case S. deposited in the defendant bank, but in the name of the insolvent corporation, funds received from the proceeds of grain shipped him for sale on commission. *Held,*that the bank, without the knowledge or consent of S., could not offset and apply the funds so deposited upon an indebtedness due it from the insolvent corporation.

,3. If money held by a person in a fiduciary character, though not as trustee, has been paid by him to his account at his banker’s, the person for whom he held the money can follow it, and has a 'charge on the balance in the banker’s hands.

4. A commission merchant on selling several consignments deposited the proceeds in defendant bank, and, at the date the bank unlawfully applied the merchant’s deposit on the indebtedness of a third person, the amount on deposit was less than the aggregate due the consignors. *Held,*that the amount then standing to the commission merchant’s credit was in' equity the property of the owners of the net produce from which it was realized, and should be paid to them according^ their proportionate shares thereof.

*4995. Where a fund on deposit in a bank was the proceeds of sales of grain that had been sold on commission by the depositor, and not his own personal moneys, the mere fact that, two months prior to the deposit therein of the proceeds of plaintiffs’ grain, the bank had, with the depositor’s consent, applied a part of such deposit on an indebtedness due it, did not give the plaintiffs a right of action to impose a trust in their favor upon the deposit then in the bank.

6. In such case the plaintiffs can only recover by showing that they are the equitable owners of the fund sought to be charged, and not by showing that some stranger had such right of action.

7. In such case the rights of the several plaintiffs in the deposit and the proper distribution thereof are ascertained and stated in the opinion.

8. Where a commission merchant deposits to his own credit in a bank the proceeds of sales for his principals, and depletes that deposit by his individual checks, the principal cannot recover the amounts so drawn out from the bank.

Appeal from a judgment of tbe superior court of Douglas •county: Chaet.es Smith, Judge.

*Modified and affirmed.*

Tbis action was brought by tbe plaintiff and tbe five inter-veners to recover from tbe defendant banks, or one of them, moneys realized as tbe proceeds of grain and flax sold for them, or some of them, on commission by E. Scbwedler, between September 6, 1901, and February 10, 1902, and by bim deposited in tbe *Northwestern National Bank of Superior,*and wbicb bank sold and transferred all its assets to tbe *First National Bank of Superior,*wbicb assumed all liabilities September 22, 1902. Tbe facts are undisputed or found by tbe court, and are to tbe effect tbat tbe Scbwedler Grain Company was incorporated and commenced doing tbe business of buying and selling grain and flax on commission in Superior in 1898, and continued doing sucb business until 1901; tbat during tbat time it did its banking business witb tbe *Norihwestem National Bank,*and became largely indebted to tbat bank, and at all times since 1900 sucb indebtedness was and now is $4,000, evidenced by tbe three notes in tbe record; tbat in tbe spring of 1901, on account of sucb *500indebtedness and other things, the Schwedler Grain Company became embarrassed and passed into the hands of one E. R. Crumpton, trustee, who conducted the business for two or three months with the aid of Mr. Schwedler, who had been president of the corporation, but ceased to do such business in August, 1901, with such indebtedness still unpaid, and the same continued; that thereafter, and on or about September 1, 1901, Mr. Schwedler furnished the necessary capital and opened and continued such commission business on his own account but in the name of the Schwedler Grain Company, and in that name opened an account with the *Northwestern National*Banh, and all moneys received by him as proceeds of sales of grain and flax in such business, either individually or in the name of the Schwedler Grain Company, were deposited in that bank in that account, but that the Schwedler Grain Company had no interest in said business so carried on, on and after September 6, 1901; that the money deposited in that bank in the name of the Schwedler Grain Company was all of it received as the proceeds of the sale of grain and flax by Mr. Schwedler, and belonged to the customers or persons for whom he sold the grain and flax, except one half of one per cent, by way of commission earned by him, which was deposited with such other proceeds; that between September 6, 1901, and February 10, 1902, Mr. Schwedler received from various and divers persons shipments of grain and flax and sold the same on commission, and deposited the proceeds of the sales from day to day in that bank in that account — in many cases the freight being paid by the purchasers, and in other cases the gross proceeds of the sales were so deposited, and then the freight bills, the inspection, and other charges not paid by the purchasers were promptly paid by Mr. Schwedler’s checks upon such account in that bank; that the credit in such bank account did not at any time after September 6, 1901, exceed the amount actually due to such customers as the proceeds of such sales; that Mr. Schwedler *501from time to time drew out from such, account, for bis own use,, bis commissions and all moneys due bim personally, and at no time was there in said account more tban from $100 to $200 belonging to bim, and that none of tbe money received in said account at tbe time of tbe trial belonged to or is claimed by Mr. Scbwedler personally, or to any one else ■other tban the parties to this action; that October 8, 1901, Mr. Scbwedler, upon tbe demand and urgent request of that bank, through its president, drew and delivered to such president bis check for $500, to be applied on tbe old indebtedness of tbe old company to said bank, at tbe same time notifying said president that tbe moneys so on deposit in said bank account did not belong to Mr. Scbwedler nor to tbe old company, but did belong to such consignors of Mr. Scbwedler; that tbe bank accepted tbe check with full knowledge of tbe facts stated and charged it to said account under date of October 9, 1901, and issued a cashier’s check in favor of itself, but did not indorse or in any way apply any money or said check upon such indebtedness, but, on tbe contrary, credited tbe amount of the said check to its cashier’s account, which was only, in effect, a method of bookkeeping; that December'!, 1901, tbe plaintiff *Boyle*shipped a carload of flax to Mb*. Scbwedler, which be sold on commission, and tbe proceeds were deposited by bim in tbe account in that bank— $500 December 14, 1901, and $661.43 December 18, 1901- — • and that said moneys belonged to tbe said *Boyle;*that tbe intervener *Anderson*shipped a carload of grain to Mr. Scbwedler, which be sold on commission, and tbe proceeds of such sale were deposited in such bank to tbe credit of said account January 24, 1902, and that tbe net amount of such proceeds, after deducting commission, freight, inspection, and other charges, was $430.38, and tbe same belonged to said Anderson; that tbe intervener *McNeil*shipped a carload of grain to Mr. Scbwedler, which be sold on commission, and tbe proceeds of such sale, after taking out moneys advanced *502and commissions to tbe amount of $147.35, belonged to *McNeil,*and tlie same was deposited to tbe credit of said account in said bank January 30, 1902; that the intervener *Brown*shipped a carload of grain to Mr. Schwedler, which he sold on commission, and, after deducting advancements made thereon, the net procee&s thereof belonging to *Brown,*to the amount of $165.20, were deposited to the credit of said account January 31, 1902; that the intervener *Wibe*shipped a carload of grain to Mr. Schwedler, which he sold on commission, and in January, 1902, the proceeds thereof, amounting to $520.11, were deposited in said bank to the credit of said account, and, after paying commissions, freight, inspection, and other charges, the balance of $426.92 belonged to *Wibe;*that the intervener *Larson*shipped a carload of grain to Mr. Schwedler, which he sold on commission, and the proceeds thereof, amounting to $527.78, were deposited in said bank February 4 and 8, 1902, to the credit of said account, and, after paying commissions, freight, inspection, and other charges, the balance of $439.08 belonged to said *Larson;*that neither the plaintiff nor any of the interveners were informed of or knew or consented to the deposit of such proceeds of sales, or any part thereof, in said account or said bank, and each of them was entitled to have the net proceeds of his carload at once transmitted to him in the regular course of business ; that the officers of that bank, and particularly the president, had notice and knowledge that the moneys so deposited were the proceeds of sales of grain shipped to and sold by Mr. Schwedler on commission and belonged to such shippers, although the names were not disclosed to the bank; that Mr. Schwedler had no authority to make any of such deposits; that the plaintiff and the said five interveners were all the trust creditors of Mr. Schwedler and all the unpaid persons whose moneys were deposited in said account; that the moneys so deposited in said account were mixed with the other moneys of the bank, and checks of Mr. Schwedler drawn thereon as *503usual, and none were special deposits during any of the time from September 6,1901, to February 10,1902; that after tbe deposits of tbe proceeds of *Larson’s*grain as mentioned, tbe only checks drawn upon or paid from said account were three, to wit: one for $4.20, one for $30, and tbe other for $75, making in all $109.20; that February 10, 1902, that bank, without tbe knowledge or consent of Mr. Schwedler, or the plaintiff, or any of said interveners, charged said account with $648 and credited the same to its cashier’s account, claiming the light to apply it, as it had the $500, on the old indebtedness of the grain company, but did not in fact apply or indorse the same thereon; that such moneys of the plaintiff and each and all of the several interveners so deposited were placed in the general funds of the bank, and there kept, except as so drawn out on the checks of Mr. Schwedler, until September 22, 1902, and during that time such general fund never ran below $2,000; that on the day and year last mentioned such general fund and all the assets of that bank, including not less than $40,000 in cash, were turned over and transferred to the *First National Banlc of Superior,*pursuant to a contract of purchase thereof, and the last-named hank then assumed and agreed to pay to each and all of the depositors the money due them out of the funds and assets so received, and the same were sufficient to meet all liabilities so assumed, including the amount standing to the credit of said account and the amount represented or charged by reason of such cashier’s checks; that the funds of said banks, respectively, during the times named were increased and enriched to the extent of such deposits, less the amounts so drawn out on checks of Mr. Schwedler, and that each of said banks has been at all times entirely solvent; that from September 6, 1901, to September 22, 1902, the account so kept in the *Northwestern National Bank*showed the following balances: On February 16, 1902, and from that time *to*September 22, 1902, to the credit thereof, thirteen cents; that whether such *504balance should, be increased by adding thereto the $648 so charged to the account February 10, 1902, and the $500 so charged to the account October 9, 1901, or either of them, depended upon the determination of the court to be made therein; that, if the charge of $500 should be allowed to stand, the lowest balance between December 9, 1901, and February 10, 1902, was $153.50, January 2, 1902, and, if the $500 should be canceled, then the lowest balance would be. $653.50, January 2, 1902.

As conclusions of law the court found, in effect, that the issuing of the cashier’s check of $500 and the crediting the same to the cashier’s account October 9, 1901, was improper and ineffectual and did not in any wise affect the fund in the bank to the credit of said account; that the charge of $648 against said account and the crediting the same to the cashier’s account and issuing a cashiér’s unsigned check therefor, February 10, 1902, was improper, illegal, and in no way affected the funds to the credit of said account; that the *Northwestern National Bank*had no right to appropriate the money so deposited in said account to apply upon its old claim against the grain company, and had no right to offset the same; that Mr. Schwedler’s checks upon said account, so far as drawn in favor of his respective customers, must be presumed to have been drawn against funds of such customer, so far as he had any to meet the same; that checks drawn by him for his own use must be presumed to have been drawn out of his own funds, so far as he had any in the bank, and when he had none, or when the customers in whose favor a check was drawn had none, or,an insufficient amount, then the moneys paid out thereon, so far as there was a deficiency, should be deducted *pro rata*from the moneys of all other customers in said fund; that after annulling the two charges, $500 and $648, as mentioned, there was in the *Northwestern National Bank*to the credit of the account kept as aforesaid until Sep- . tember 22, 1902, $1,148.13, which funds were at that time *505transferred by tbat bank to tbe *First National Bank,*and are now beld by it; tbat tbe plaintiff and -tbe intervening creditors were entitled to recover said moneys in tbe following amounts: *Boyle*$258.72, *Wibe*$169.01, *Anderson*$170.88, *McNeil*$58.35, *Brown*$65.40, *'Larson*$426.27; tbat the *First National Bank*pay into court tbe $1,148.13 and take tbe clerk’s receipt tberefor; tbat tbe cashier’s check of October 9, 1901, and tbe unsigned check of February 10, 1902, be canceled, and tbat such payment, being made, would.be a full discharge; tbat out of tbe moneys so paid in tbe clerk shall pay over to tbe plaintiff and tbe intervening creditors, respectively, tbe sums mentioned in tbe above conclusion of law; tbat tbe plaintiff and interveners recover from tbe *Northwestern' National Bank*costs and disbursements as therein mentioned; and tbat "the plaintiff *Boyle*is entitled to recover as damages of tbe *Northwestern National Bank*interest upon bis share of tbe sum mentioned from February 5, 1903, amounting to $21.99. Tbe interveners do not claim interest, and so none is allowed to them. And tbe court thereupon •ordered judgment to be entered according to such findings. From tbe judgment so entered tbe *Northwestern National Bank*appeals.

*Bolon L. Perrin,*for tbe appellant.

*John Brennan,*for tbe respondent *Boyle.*

For tbe respondent interveners there was a brief by *Luse, Powell, deForest & Luse,*for *Larson, Wibe,*and *Anderson,*and by *F. O. Kennedy*for *McNeil'anA Brown,*and oral argument by *L. K. Lase.*

Tbe following opinion was filed June 23, 1905:

Cassoday, C. J.

1. Under tbe findings of tbe court and tbe evidence, tbe commission business in which Mr. Schwed-ler was engaged from September 6, 1901, to February 10, 1902, must be regarded as bis personal business and not a continuation of tbe business of tbe old grain corporation of *506which he had previously been the president, and which corporation was indebted to the bant during the time mentioned in the sum of $4,000. It appears from the findings and is undisputed, that the moneys received from time to time by Mr. Schwedler on the sale of grain and flax on commission during the period mentioned were deposited by him in the bank and that he drew checks thereon as stated. It also appears and is undisputed, that the last deposit so made by him was on February 8, 1902, the same being proceeds of the sale of *Larson’s*grain; that, after making that deposit, Mr, Schwedler only gave three checks drawn on that account, amounting in the aggregate to $109.20; and that after deducting that amount from the amount standing to his credit on the books of the bank there remained a balance to his credit on the morning of February 10, 1902, of only $648.13, notwithstanding Mr. Schwedler had deposited in the bank to the credit of that account between December 1, 1901, and February 10, 1902, $2,770.38, being the proceeds of sales of grain and flax belonging to the plaintiff and the five inter-veners, respectively, and none of which had been paid to them or any of them. On February 10, 1902, the.bank, without the knowledge or consent of Mr. Schwedler, or the plaintiff, or any of the interveners, and upon an unsigned check or memorandum drawn by itself, as found, charged said account with $648 and credited the same amount to its cashier’s account; and by virtue of such charge and credit so made the bank claims the right to withhold said $648 from the plaintiff and the five interveners and any of them, and apply the same upon the .debt which the grain corporation owed the bank. The trial court held that such claim was without foundation and that such charge and credit so made were improper, illegal, and in no way affected or diminished the amount of $648.13 so standing to the credit of Mr. Schwedler on the morning of February 10, 1902. One of the important questions in the case is whether such ruling of the trial court is *507correct. It is to be observed tbat Mr. Scbwedler makes no claim to any part of tbe money so on deposit. It is also found tbat tbe plaintiff and tbe five interveners are tbe only persons whose moneys were so deposited in said account and wbo bave not been paid.

Tbe question recurs wbetber, in equity, tbe money so on deposit should be paid to tbe owners of tbe produce from which it was realized or to tbe bank, to be applied on its old claim against tbe grain corporation. It is very evident tbat whenever Mr. Scbwedler sold a carload of grain or flax on commission, and received pay for tbe same, such proceeds, after deducting commissions, freight, inspection, and other charges, were held by him for tbe owner of tbe grain or flax so sold. Tbe contention seems to be tbat by depositing such proceeds in tbe bank to tbe credit of such account-the same became mixed with the funds of tbe bank generally, and tbat by reason of such mixture it became impossible to trace and identify tbe particular money so deposited as entering into any specific fund or property so sought to be charged. In support of such contention counsel cite *Nonotuck Silk Co. v. Flanders,*81 Wis. 287, 241, 242, 58 N. W. 883; *Burnham v. Barth,*89 Wis. 362, 366—370, 62 N. W. 96; *Dowie v. Humphrey, 91*Wis. 98, 102-104; *Bromley v. C., C., C. & St. L. R. Co.*103 Wis. 562, 568, 569, 79 N. W. 741; *Hyland v. Roe,*111 Wis. 361, 366, 367, 87 N. W. 252. These cases do not, in our judgment, go to tbe extent claimed. On the contrary, “the more recent rule in England,” followed in these cases, is tbat:

> “If money held by a person in a fiduciary character, though not as trustee, has been paid by him to bis account at bis banker’s, tbe person for whom be held tbe money can follow it, and has a charge on tbe balance in tbe banker’s bands.” *In re Hallet's Estate,*L. R. 13 Ch. Div. 696.

Tbe reasons for tbe rule are so fully stated by tbe learned Master of the Eolls in tbat case as to render it unnecessary *508to add to such reasoning here. At least two of the cases cited by counsel for the defendant expressly sanction the rule thus •quoted, and the others, in a general way, approve of the de■cision from which they are quoted. There is no purpose here •of renewing a discussion which is so fully covered upon reason and authority by our own cases. Nevertheless we venture to quote from two decisions in the supreme court of the United States what seems to be peculiarly applicable to the •case at bar:

> “Although the relation between a bank and its depositor is that merely of debtor and creditor, the money which he deposits, if held by him in a fiduciary capacity, does not change its character by being placed to his credit in his bank account. 'The bank contracts that it will pay the money on his checks, and when they are drawn in proper form it is bound to presume, in case the account is kept with him as a trustee, or as acting in some other fiduciary character, that he is in the •course of lawfully performing his duty, and to honor them accordingly; but when against such an account it seeks to assert its lien for an obligation which it knows was incurred for his private benefit, it must- be held as having notice that the fund is not his individual property, if it is shown to consist, in whole or in part, of money which he held in a trust relation.” *National Bank v. Insurance Co.*104 U. S. 54.

> “A bank receiving on deposit from a factor, under the circumstances set forth in this case, moneys which it must have known were the proceeds of property of the factor’s principal, consigned to him by the principal for sale on the principal’s account, of which moneys the principal was the beneficial owner, cannot, as against the latter, appropriate the deposits to the payment of a general balance due to the bank from the factor; and if it attempts to do so the remedy of the principal against the bank is in equity and not at law.” *Union Stock Yards Bank v.*Gillespie, 137 U. S. 411, 11 Sup. Ct. 118.

Upon, the strength of these authorities and many others which might be cited, it is manifest that the $648.13 standing fo the credit of Mr. Schwedler on the books of the banlc on *509tbe morning of February 10, 1902, was in equity tbe property of tbe owners of tbe net produce from wbicb tbe same-was realized, and should be paid to such owners according to-their proportionate shares thereof in equity.

2. Tbe right to tbe $500 mentioned is governed by a different principle. Tbe trial court held, in effect, that tbe check given by Mr. Schwedler on said account to tbe president of tbe bank October 8, 1901, for $500, and charging of the-same to said account, and issuing tbe cashier’s check therefor,- and crediting the amount of the check to the cashier’s account,, was only, in effect, a method of bookkeeping and was improper and ineffectual, and did not in any wise affect the fund' in the bank to the credit of said account. Assuming such-findings and ruling to be correct, the question recurs whether the trial court properly held that the $500 thereafter remained to the credit of Mr. Sehwedler’s account, and was in equity the property of the plaintiff and the interveners and subject to be charged as such in this action. The nature of the action seems to have been lost sight of. This is not a proceeding by attachment or garnishment. The question is not whether the-bank wrongfully induced Mr. Schwedler to give the check bn the fund in the bank, which in equity belonged to his consignors, but whether such fund belonged to the plaintiff and the interveners, or some of them, at the time the check was so given. As stated in some of the adjudications cited, the right of action to trace the moneys and charge the fund has its basis in the right of property, but never upon the theory of preference by reason of an unlawful conversion. *Nonotuck Silk Co. v.*Flanders, 87 Wis. 237, 242, 58 N. W. 383. So, as stated by Mr. Justice PiNNEY in one of the cases cited and reiterated in others:

> “When the trust fund cannot be identified or traced into-some specific estate or substituted property, and the means of ascertainment fail, the trust wholly fails, and the party can only prove as a general creditor. ... As the right to-*510trace bis trust fund is founded on tbe right of property and not on tbe ground of compensation for its loss, be must be able to point out tbe particular property into wbicb tbe fund lias been converted. When be is unable to do this, tbe trust fails and bis claim becomes one for compensation only, for tbe loss of tbe fund, and stands on tbe same basis as tbe claims of general creditors. . . . "Where tbe trust fund cannot be traced, and tbe substituted property into wbicb it has entered specifically identified, tbe trust fund must be regarded as dissipated, within tbe meaning of tbe authorities — scattered, dispersed, and, as such, destroyed.” *Burnham v.*Barth, 89 Wis. 362, 367, 369, 370, 62 N. W. 96; *Dowie v. Humphrey,*91 Wis. 98, 103, 64 N. W. 315.

Mr. Schwedler’s check for $500 was given to tbe bank nearly two months prior to tbe time when tbe plaintiff or any of tbe interveners shipped any grain to Mr. Schwedler, and more than two months prior to tbe time when any money belonging to tbe plaintiff or any of tbe interveners was so deposited in tbe bank. This being so, it is very obvious that such •check was not drawn upon any fund in wbicb tbe plaintiff or any of the interveners bad any interest. If, as found by tbe court, Mr. Schwedler, at tbe time of giving that check, notified tbe president of tbe bank that tbe money then in tbe bank to bis credit in said account did not belong to him nor to tbe grain corporation, but did belong to those who bad previously made consignments to him, still that could give no right of action in favor of tbe plaintiff or any of tbe inter-veners, in equity, to charge tbe fund then in tbe bank. In other words, tbe plaintiff and tbe interveners can only recover in this form of action by showing that they, or some of them, are tbe equitable owners of tbe fund sought to be •charged, and not by showing that some stranger to tbe action bad such right of action. We must bold that tbe trial court improperly held tbe bank liable for tbe fund of $500 covered by Mr. Schwedler’s check of October 8, 1901.

*By the Oourt.*— The judgment of tbe superior court for Douglas county is hereby modified by reducing tbe amount *511of tbe recovery from tbe *First National Banlc*to $648.13, and tbat tbe same be divided between tbe parties equitably entitled, as indicated in tbis opinion, and tbat, as so modified, tbe judgment is affirmed, with, costs in favor of tbe appellant.

Tbe plaintiff and tbe interveners moved for a rebearing, wbicb was denied without costs, and tbe following opinion was filed October 3, 1905:

Cassoday, C. J.

Tbe motion for a rebearing presents no ground for bolding tbe bank liable in tbis action for tbe $500 for wbicb Mr. Schwedler gave bis check more than a month prior to tbe time when any money belonging to tbe plaintiff or to any of tbe interveners was deposited in tbe bank. Tbe reason for this ruling is sufficiently stated in tbe opinion filed *(ante,*pp. 498, 505-511, 103 N. W. 1123, 1127, 1128). So, for tbe reasons there given (ante, pp. 505-510, 103 N. W. 1126, 1127), we adhere to tbe ruling there made “that tbe $648.13 standing to tbe credit of Mr. Schwedler on tbe books of tbe bank on tbe morning of February 10, 1902, was in equity tbe property of tbe owners of tbe net produce from wbicb tbe same was realized, and should be paid to such owners according to their proportionate shares thereof in equity.” We are now asked to fully determine tbe rights of tbe parties upon tbe facts here presented. While tbe principles upon wbicb those rights 'are to be determined are stated in tbe former opinion, yet tbe rights of tbe respective parties are not there stated in detail.

Tbe question is as to tbe proper distribution to be made of tbe $648.13 to tbe credit of Schwedler in tbe bank on tbe morning of February 10, 1902. As stated in tbat opinion, $1,161.43 belonging to tbe plaintiff, Boyle, was deposited in tbe bank to tbe credit of Schwedler December 14 and 18, 1901. Upon tbe theory tbat there was only $648.13 to be distributed, it was found by tbe trial court and is undisputed *512tbat tbe lowest balance to tbe credit of Scbwedler between December 9, 1901, and February 10, 1902, was $153.50, on January 2, 1902. Since no money belonging to any of tbe interveners went into tbe bank prior to tbe day and year last mentioned, it is manifest tbat tbe $153.50 so to tbe credit of Scbwedler January 2, 1902, was in equity tbe property of *Boyle.*It is also manifest, upon tbe principles stated, tbat tbe moneys belonging to *Boyle*wbicb had been drawn from tbe bank on tbe checks of Scbwedler prior to January 2, 1902, cannot be reached by him in this action. It appears from tbe findings and is undisputed tbat after January 2, 1902, and during tbat month, there were deposited in tbe bank to tbe credit of Scbwedler moneys belonging to tbe following inter-veners, respectively, in tbe amounts stated, to wit: *Wibe,*$426.92; *Anderson,*$430.38; McNeil, $147.35; and Brown, $165.20 — making in tbe aggregate, with tbe amount so belonging to Boyle, $1,323.35. It also appears from tbe findings and is undisputed that tbe intervener *Larson*shipped to Scbwedler a carload of grain, wbicb be sold on commission, and tbe proceeds thereof, amounting to $527.78, were deposited in tbe bank to tbe credit of Scbwedler February 4 and 8, 1902, and tbat after paying therefrom tbe freight, inspection, and other charges, including commissions, tbe balance thereof, amounting to $439.08, belonged to Larson, and tbat after such deposit of tbe proceeds of *Larson’s*grain “tbe only checks drawn or paid upon said account were three in number, . . . amounting in tbe aggregate to $109.20.” Assuming tbat this amount was all paid from the proceeds of *Larsons*grain, then, by deducting this amount from tbe $527.78, tbe proceeds of *Larson’s*grain so deposited, there remains a balance of at least $418.58 as belonging to *Larson,*and wbicb must have been in tbe bank to tbe credit of Scbwedler on tbe morning of February 10, 1902. We perceive no reason why *Larson*is not entitled to tbat amount in tbe judgment to be entered in this action. Deducting tbe $418.58 from tbe $648.13 *513standing to the credit of Sehwedler on the morning of Eeb-ruary 10, 1902, and it leaves a balance of $229.55 to be distributed to *Boyle*and the four interveners whose moneys went into the bank to the credit of Sehwedler in the month of January, 1902, as stated, according to their proportionate shares thereof in equity; that is to say, to *Boyle*$26.63, to *Wibe*$74.05, to *Anderson*$74.65, to *McNeil*$25.56, and to *Brown*$28.66, making a total of $229.55. This gives to each a little over seventeen and one third per cent, on the amount of his claim for his money so on deposit in January, 1902. The division thus to be made is in accordance with the principles stated in the former opinion.

*By the Gourt.*— The judgment of the superior court for Douglas county is hereby modified by reducing the amount of the recovery from the *First National Bank*to $648.13, and that the same be divided between the parties equitably entitled, as indicated in the former opinion and as stated in this opinion, and that, as so modified, the judgment is- affirmed, with costs in this court in favor of the appellant.