The opinion
McClain, C. J.
(dissenting).— While generally concurring with the dissenting views of Mr. Justice Deemer, I desire to draw attention more specifically to one question which seems to me to be controlling in the disposition of *355 this case. The vital question is/whether plaintiff accepted the cashier’s checks, and voluntarily converted them for his own purposes, and not in pursuance of any agreement or arrangement with defendant, express or implied, into a different form of obligation on the part of the bank. If he did this, he plainly cannot recover. The facts, as I gather them from the record, are that plaintiff requested and supposed he was receiving two drafts — one for $1,000, the other for $3,400 — and that subsequently after consulting with his own agent in regard to the most convenient form of transmitting the money, and with full knowledge that the instruments which he had received were not drafts,-but only cashier’s checks, he surrendered them to the bank, and accepted one draft in lieu thereof; and that this was done without the knowledge or consent of defendant. The only plausible contention with reference to this surrender of the checks which could relieve plaintiff from the consequences which must follow his treating them as his own with full knowledge of their nature, and thereby accepting them in discharge of defendant’s obligation to him, would be that he was seeking to rectify a mistake, and was endeavoring to secure the very thing which defendant had agreed to give him, that is, a draft or drafts; and that this rectification was therefore with the implied consent- of defendant. It would not be claimed for plaintiff, I think, that if, having received two drafts from the bank he had returned these drafts for his own purposes and secured another draft as a substitute for them, drawn for instance on a different bank, he would not thereby have cut. himself off from any recourse on the defendant. And yet this is what his conduct plainly amounted to. If the surrender of the checks for a draft or drafts had been for the purpose of securing the very thing which defendant had undertaken to give him,.he would have asked for two drafts in the respective sums of $1,000 and $3,400. This he did not do, but, having changed his purpose, he secured one draft for $4,400 on a specified bank, *356 whereas the original arrangement between him and defendant had not called for drafts on that particular bank, nor on any bank in particular. It is this intervening change of purpose and action in pursuance of such change that precludes him from saying that, with the implied consent of defendant, he exchanged the cashier’s checks for that which it was his original intention and purpose to accept. In short, he did accept the checks which he had received as in full compliance with and satisfaction of defendant’s obligation to him, and treated the checks as his own.
It must be confessed that the case is one very difficult of solution, but the difficulty arises out of the necessity of imposing on one of two innocent persons a loss which neither of them had any reason to anticipate, and it is necessary to take into account every circumstance tending to indicate the real intention of the parties in order to reach a just conclusion as between them. I see no particular merit in making the loss fall upon one of them rather than the other, and should be better satisfied with the result indicated in the dissenting opinion of Mr. Justice Deemer than in that reached by the opinion of the majority of the court.