Dawson v. Bank of America Nat. Trust & Savings Ass'n
| Decision Date | 02 November 1950 |
| Citation | 100 Cal.App.2d 305,223 P.2d 280 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DAWSON v. BANK OF AMERICA NAT. TRUST & SAVINGS ASS'N. Civ. 4113. |
Novack & Haberkorn, San Bernardino, for appellant.
Samuel B. Stewart, Jr., San Francisco, Hugo A. Steinmeyer, Robert H. Fabian, Los Angeles, for respondent.
The plaintiff brought an action for debt against his former wife, Kay Dawson. A writ of attachment was issued and served, with a proper notice, upon the defendant bank on December 23, 1946, seeking to attach or garnish all debts owed by the bank to the former wife. The bank answered that it was not then indebted to Mrs. Dawson in any amount. In September, 1947, the plaintiff recovered a judgment in that action, which remains unsatisfied to the amount of $1284.95. Thereafter, he brought this action to recover that amount from the bank. The court found in favor of the defendant finding, among other things, that it was not indebted to Mrs. Dawson in any amount on December 23, 1946, and that it is not true that the bank at that time had in its possession the sum of $1800 or any other sum for the use or benefit of Mrs. Dawson. The plaintiff has appealed from the judgment.
On November 6, 1946, an escrow was opened with the bank through which one Grove was selling a house to one Wallace. Grove was buying the house from one Demas under a contract executed in September, 1944. On November 14, 1944, Grove had borrowed $1000 from Mr. Dawson, giving a note therefor. At the same time two contracts were executed under which Dawson was given a lease on the house; he agreed to pay certain taxes, insurance and other bills; and it was agreed that he should be substituted as purchaser under the Demas contract in the event Grove's indebtedness to him was not paid by November 15, 1946. On July 2, 1946, Dawson assigned his interest in these instruments to Mrs. Dawson.
When the escrow was opened on November 2, 1946, Wallace deposited the purchase price and the escrow instructions provided, among other things, that the escrow holder should pay $1000, plus interest, to Mr. Dawson 'for assignment of lease now held by him.' On the same day the bank sent the escrow instructions to Grove, who was in Oklahoma, for his signature, and also wrote to Mr. Dawson who was in Texas. On November 13, the bank sent a telegram to Mr. Dawson telling him money was there to pay his demand under the terms of the agreement of November 14, 1944, 'to be approved by Grove, personally' and asking him to forward the agreement for cancellation when the demand was paid. On November 14, the bank received a telegram from Dawson in reply to its letter of November 6, saying Also on November 14, the bank got a telegram from Grove saying he had received the escrow instructions, which were satisfactory; that he would sign and return them; and then saying 'Please pay out of escrow the claim of Mr. and Mrs. Leo Dawson lessees today if possible as per agreement with them in our contract due November 15, 1946.' On the same day, November 14, Wallace amended his escrow instructions by directing the bank to pay the claim of Mr. Dawson and his wife Grove signed and returned the original instructions sent him by the bank.
On November 18, the bank got a letter from Mr. Dawson stating the amount he claimed. Shortly thereafter, Mrs. Dawson told the bank that her ex-husband had assigned his claim to her. On November 27 the bank wrote to Mrs. Dawson that it was holding funds for the payment of such a demand when it was approved by Grove, and when the note and agreement were placed in the escrow for cancellation. On November 30 the bank received notice from Mr. Dawson that he had turned the matter of settling his claim over to his attorney. On November 30, the bank wrote to Grove telling him that it was in a position to record the deed to Wallace as soon as it received from 'Dawson and wife, a mutual demand, with your approval thereof'; that they had received a demand from Mr. Dawson but he did not surrender his copy of the agreement with Grove; that Mrs. Dawson claimed to hold an assignment of this agreement but had failed to deposit a demand with the necessary documents; and that they would be in a position to close the transaction with Wallace 'if you will instruct us as to the amount which you owe Col. Leo H. Dawson and wife, and authorize us to hold the amount in escrow until the matter between you and Col. Dawson and wife has been settled.'
On December 4 Mrs. Dawson called at the bank, submitted some figures as to her demand and showed the original contracts and the assignment to her, but refused to leave the documents or to sign anything. On December 16, the bank received a letter from Grove authorizing it to close the sale of the house to Wallace, and to with-hold $2000 to settle the claim of Dawson and his wife, the balance to be paid to him, and then saying: 'I am to give final approval as to the amount claimed by the Dawsons.'
On December 21, 1946, the bank recorded a deed to Wallace and held back $2000 to be used in accordance with Grove's instructions. On December 23, 1946, the attachment here in question was levied, and a return made...
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