Page:North Dakota Reports (vol. 3).pdf/68

 defendant McDermott that this money never reached the possession of Clark & Smart, and that, if it did, it had become so mingled with their general assets that it could no longer be traced and identified, either in its original or in a changed form, at the time their property passed to him as their assignee. The facts would seem to support both of these contentions. Clark & Smith were located at Cooperstown, N. D., engaged in banking business, and acted from the opening of the wheat season in 1889 to January 26th, 1891, as paying agents for the plaintiff at that place. As such agents they cashed wheat tickets or checks issued by the plaintiff in buying wheat. The arrangement between plaintiff and them was that they were to furnish all currency necessary to cash these wheat tickets, and were to reimburse themselves by drafts on the plaintiff. Business was carried on under this arrangement until January 26th, 1891, when Clark & Smart made an assignment to defendant McDermott for the benefit. of their creditors. At that ‘time the account between the plaintiff and Clark & Smart disclosed a balance of $275.77 in favor of plaintiff. There was a contest in the trial court, and also in this court, over the question whether the simple relation of debtor and creditor existed between the parties, or whether the arrangement between them, in connection with their acts thereunder, created a special relation of a fiduciary character between them. We will assume the latter for the purposes of this case. Still we are unable to sustain the judgment of the court, which gave the plaintiff priority of payment out of the general assets in the hands of the assignee. On January 19th, 1891, there was a balance in favor of the plaintiff of $111.60. Between that time and the date of the assignment, January 26th, 1891, Clark & Smart paid out for the plaintiff in payment of wheat tickets the sum of $335.83. This would have left no funds of the plaintiff on hand, had it not been for a draft for $500, drawn on the plaintiff on January 19th. But no part of the proceeds of this draft ever came fo the possession of Clark & Smart. The draft was drawn payable to the order of H. P. Smart, and the proceeds thereof went to his individual