contemplation of this business transaction to be transmitted nor even dealt with or considered. Hence no special deposit was made, nor can such theory change the ordinary debtor and creditor relation that arose under the stipulated facts. Note to 1 Morse, Banks & Bkg. § 248; Plano Mfg. Co. v. Auld, 14 S. D. 512, 86 Am. St. Rep. 778, 86 N. W. 21; Cutler v. American Exch. Nat. Bank, 113 N. Y. 593, 4 L.R.A. 328, 21 N. E. 710.

There is no substantial conflict in the theory of the law as to when deposits are general or special. But in the application of the theory under the peculiar facts of each case there is far from harmony in the decisions. Much of the discord arises from the change in relations of the parties pending the transactions and where rights of others intervene or are to be considered. Much of the law cited by appellants was declared in suits brought by claimants against receivers of defunct banks. It is here of no concern whether this plaintiff could follow this deposit in the hands of a receiver had this bank failed before remitting. Plaintiff asserts no such right, being content to treat this transaction exactly as the bank treated it, viz., as a general deposit against which it drew its checks in plaintiff's favor. Whether the bank alone could in that way make plaintiff a general depositor against its wishes, so as to bar it from following its deposit as a trust fund or special deposit with plaintiff, denying the passing of any title thereto to its collecting agent, the bank, is not the question before us. The situation here is simple, and is merely whether the defendant, after creating by its act a general deposit and the relation of debtor and creditor with plaintiff, may then claim, after its cashier and president have by their trickery and dishonesty embezzled its funds to an amount equal to what plaintiff has so deposited, that a special deposit was made in order to found a claim thereon that its officers have embezzled a special deposit and not its own general funds. This sums up the contention made by defendant. No authorities can be found to support such a claim. It can not be allowed to thus defeat its liability.

But defendant asks: "If the misappropriation was not the act of the bank, how can it be held liable?" The act of the bank upon which its liability rests was receiving these funds in due course of ordinary banking for transmission and then making a general deposit of them as it did. What happened subsequent to this could not release it from

liability. Hence it is no concern of plaintiff that defendant's officials embezzled its general funds afterward. Nor does it release the bank from liability.

The note to 86 Am. St. Rep. at page 786, covers this situation by the following: "In the absence of such general agreement, however, [an agreement to transmit funds received as a special deposit] 'the custom of bankers to credit customers with the proceeds of paper left for collection when the paper has been collected is universally recognized; and customers and bankers are presumed to contract and deal together in view of this usage. The law therefore authorizes the banker to credit the customer with the proceeds in lieu of making a specific delivery; and the necessary effect of an authorized credit is to create the relation of debtor and creditor between them from the time when the credit is given.' First Nat. Bank v. Bank of Monroe, 33 Fed. 408. From this it follows that the bank takes title to the proceeds of a check or draft deposited with it for collection immediately upon crediting the depositor with the amount of such proceeds. In this connection the rights of a bank are different from and greater than those of other attorneys or agents, as is pointed out in Tinkham v. Heyworth, 31 Ill. 519. The bank occupies the position of an agent for collection until the proceeds are actually received and credited, thereupon it takes title thereto, and the relation of debtor and creditor takes the place of that of principal and agent,”—citing many cases. See also notes to 39 L.R. A. (N.S.) 847; 16 L.R.A. 516; and 32 L.R.A. 769, citing much authority, and 3 R. C. L. pages 632 et seq. where authorities are cited and explained. This was a general deposit made with it. This difference between the implied powers of a bank through custom and business convenience was the basic principle recognized and held controlling by this court in Schafer v. Olson, 24 N. D. 546, 43 L.R.A. (N.S.) 762, 139 N. W. 983, Ann. Cas. 1915C, 653. And to that extent that case is authority here. See also the decision in State v. Bickford, 28 N. D. 36, 147 N. W. 407, Ann. Cas. 1916D, 140.

But assume this was a special deposit. It is stipulated that the president had knowledge of the misuse. There is no showing or fact stipulated to show that the president was considered and known as honest or otherwise. The contrary is the presumption. "From the loss of the property (the special deposit), actionable negligence is pre

sumed." 3 R. C. L. 559. From the facts stipulated, it affirmatively appears that the bank or its directors were negligent in the selection. of its managing head, and should be held liable on that ground, even accepting its claim that these funds were in fact and law a special deposit. Gray v. Merriam, 148 Ill. 190, 32 L.R.A. 769, 39 Am. St. Rep. 172, 35 N. E. 810, 1 Am. Neg. Cas. 478. "And the banker must prove the exercise of the degree of care required of him by the decisions in the jurisdiction in which the loss occurred and in which his liability is sought to be enforced," or respond in liability for even a special deposit. 3 R. C. L. 559, 560. The bank cashier embezzled this money with the knowledge of the bank, with imputed notice to the directors, the bank itself, of what was done and which makes it the act of the bank and estops it from questioning its liability. "Knowledge of a bank teller relative to the collection of money and the ownership of notes left with him for collection must be imputed to the bank, and notice to him is notice to the bank." 3 R. C. L. 475; McCarty v. Kepreta, 24 N. D. 395, 48 L.R.A. (N.S.) 65, 139 N. W. 992. The stipulation shows these funds went to cover the personal overdraft on the bank of its managing officers. Knowledge of this fact is imputed to the bank. The acts of its cashier and president in turning these funds over to the bank to repay their shortage with the bank estops the bank to claim otherwise than that it has plaintiff's funds, Citizens' State Bank v. Iverson, 30 N. D. 497, 153 N. W. 449. It has no defense against this suit. Judgment is affirmed.

Both parties appeal. Trial de novo demanded by defendant and partial

retrial by plaintiff. Reformation of a written contract and its cancelation for alleged fraud of defendant, and forfeiture for his defaults under the contract, are sought by plaintiff; defendant asks that title of the land in suit be quieted in him, on condition.

Held: There was no fraud practised upon plaintiff, inducing her to make the contract for sale of the land to defendant.

(2) Possession in defendant was contemplated by the contract.

(3) There was no abandonment by defendant of the contract or premises. (4) Plaintiff is not entitled to forfeiture.

(5) Plaintiff should not recover an annual rental of $300 and interest thereon for defendant's possession of the premises.

(6) In lieu of rental allowed by the judgment, plaintiff should recover only interest at 7 per cent per annum on the $2,100 balance due on contract from its date of deposit made with the clerk.

(7) Balance of deposit over $2,100 and interest and costs of trial less defendant's costs on this appeal, ordered returned to defendant, in whom also title is quieted to the half section in dispute.

Opinion filed August 7, 1916.

From a decree of the District Court of Ransom County, Allen, Judge, both parties appeal.

Modified and judgment directed.

Curtis & Curtis, for appellant.

When a judge trying a case without a jury has determined upon his decision in such case, he may announce his decision orally, and may call upon the attorney for the prevailing party to prepare findings in accord with such decision, or he may draft the findings himself. Howard v. Howard, 52 Kan. 469, 34 Pac. 1114; Bateman v. Blaisdell, 83 Mich. 357, 47 N. W. 223.

Findings are, as a rule, drawn by the attorney for the successful party, and if in accord with the judge's decision, are signed as of course. Boyd v. Campbell, 12 Misc. 351, 33 N. Y. Supp. 557.

The court having failed to find fraud, or to make special findings upon the question of fraud, the presumption is that if findings on such question had been asked by the losing party, they would have been denied. Hence the plaintiff-appellant is not entitled to judgment upon the ground of fraud. Farmers' Loan & T. Co. v. Canada & St. L. R. Co. 127 Ind. 250, 11 L.R.A. 740, 26 N. E. 789.

There is no proof of fraud, nor is there in fact any fraud in the

34 N. D.-37.

case, as the past history of this litigation will show. Barnes v. Hulet, 29 N. D. 136, 150 N. W. 562; Tyler v. Shea, 4 N. D. 377, 50 Am. St. Rep. 660, 61 N. W. 468; Clopton v. Clopton, 10 N. D. 569, 88 Am. St. 749, 88 N. W. 562; Dedrick v. Charrier, 15 N. D. 515, 125 Am. St. Rep. 608, 108 N. W. 38; Martinson v. Marzolf, 14 N. D. 301, 103 N. W. 937; Plano Mfg. Co. v. Doyle, 17 N. D. 386, 17 L.R.A. (N.S.) 606, 116 N. W. 529.

Damages in this class of cases are measured as follows: "The detriment caused by the breach of an obligation to pay money only is deemed to be the amount due by the terms of the obligation, with interest thereon." Comp. Laws 1913, § 7147.

Rourke, Kvello, & Adams, for plaintiff-respondent.

"The rescission of a written contract may be adjudged on the application of a party aggrieved." Comp. Laws 1913, §§ 5934, 7206.

"Actual fraud within the meaning of this chapter consists of the acts committed by the party to the contract or with his connivance with intent to deceive another party thereto, or to induce him to enter into the contract." Comp. Laws 1913, § 5849; Dowagiac Mfg. Co. v. Mahon, 13 N. D. 517, 101 N. W. 903.

A false impression may be done by word, act, concealment, or suggestion or suppression. Liland v. Tweto, 19 N. D. 552, 125 N. W. 1032, and authorities cited.

"A contract may be rescinded where the vendor lives at a distance, and there is concealment of material facts, coupled with misrepresentations that prevent investigation." 39 Cyc. 1287, 1289; Garr v. Alden, 139 Mich. 440, 102 N. W. 950; Lofgren v. Peterson, 54 Minn. 343, 56 N. W. 44; Grindrod v. Wolf, 38 Kan. 292, 16 Pac. 691.

The appellant abandoned the contract. "A release in writing is not necessary to establish abandonment." Mahon v. Leach, 11 N. D. 181, 90 N. W. 807.

"By abandoning the contract the provisions of the same are deemed waived and the contract annulled and extinguished." Mahon v. Leach, supra; Ottow v. Friese, 20 N. D. 86, 126 N. W. 503.

Where both parties to a contract for the sale of land for a period of two years fail to take any affirmative steps to put the other in default, the contract will be considered as abandoned. Weitzel v. Leyson 23 S.