Dawson v. Bank of America National Trust & Savings Ass'n

BARNARD, P. J.

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 $1,284.95. 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 $1,800 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 honse from one Demás under a contract executed in September, 1944. On November 14, 1944, Grove had borrowed $1,000 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 Demás 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 6, 1946, Wallace deposited the purchase price and the escrow instructions

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provided, among other things, that the escrow holder should pay $1,000, 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 the money was there to paj1- his demand under the terms of the agreement of November 14, 1944, “to be approved by Grove, personally” and asldng 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 “Sum involved approximately $1,800. Make no release pending detailed statement from me. Litigation possible.” 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 “which demand is to be approved by Harry Grove. This demand is to be paid at once, regardless of completion of this escrow, when such demand has been deposited by (Mr. Dawson) and has been approved by (Grove).” Grove signed and returned the original instructions sent him by the bank.