Sunseri v. Eureka Homestead Soc.

McCALEB, Judge (concurring). While the underlying cause of the loss of the money herein sought to be recovered was the failure of the Hibernia Bank & Trust Company, the case would not have arisen had it not been for the delay of the notary in not paying the taxes promptly in accordance with the instructions of the homestead as contained in its letter of December 19, 1932. The question is, therefore, Who is responsible for this delay? The loan made by the homestead to the plaintiffs was granted only on the condition that the proceeds would be disbursed by the former for taxes and paving charges then due on the-property 4501 General Taylor street and plaintiffs acquiesced in this arrangement. Accordingly, instructions were given by the homestead to its agent, Mc-Closkey & Benedict, that tlie proceeds were to be withheld for immediate payment to the tax collector. The only reason why these instructions were not carried out was because the Sunseris prevailed upon Mr. Moulin to hold the money until such time as they could obtain a reduction in interest on the paving charges bearing against the property. It is my view that, if the proceeds of the mortgage had been lost as a result of an unreasonable delay on the part of the homestead or its agent in making payment of the taxes, then the loss should be borne by the homestead as it undertook to disburse the' monies for the account of the plaintiff. But such is not the case for, as stated above, the postponement of the disbursement of the funds resulted solely and exclusively from the act of the Sunseris in prevailing upon Mr. Moulin to refrain from paying the taxes until such time as they could obtain certain reductions. When Mr. Moulin acceded to their request, he acted not as the agent of the homestead, but as the representative of the Sun-seris and he became custodian of the funds for their account. I fully agree with my associate that Mr. Moulin, acting as subagent of McCloskey & Benedict, was free from negligence in the handling of this money forasmuch as he deposited the same in a bank which he had every reason to believe was solvent. It may be argued, however, that Mr. Mou-lin deviated from the instructions given him by the homestead when he permitted the plaintiffs to induce him to defer payment of the taxes until they could obtain a reduction. Be this as it may, the plaintiffs should not be permitted to hold the homestead for Mr. Moulin’s technical breach of the mandate inasmuch as there is no evidence to exhibit that it ratified his act in failing to pay the taxes promptly as he was directed and even if the homestead had acquiesced in this arrangement, the money could not be fairly said to be on deposit at its risk during the period it was being withheld for plaintiffs’ benefit. Moreover, it is my view that plaintiffs cannot succeed against McCloskey & Benedict on this score for the reason that the delay which caused the loss of the funds resulted primarily from their request for Mr. Moulin to hold the funds for their account until they were able to obtain the desired reduction in taxes. There is a well-established rule of equity, which I believe is particularly pertinent to this case, and that is where one of two innocent parties must suffer loss through the fraud of another, the burden of the loss should be imposed upon him who most contributed to it. See Young v. Gretna Trust & Savings Bank,. 184 La. 872 , 168 So. 85 , and cases there cited. While the rule has *93 been invoked in fraud cases, there is no reason why it is not equally applicable to cases where the loss results from insolvency. For these reasons, I respectfully concur in the decree.