Bliss v. Richardson

THOMPSON, J.

The defendant, as State Superintendent of Banks, has appealed from a judgment which was rendered against him in a suit for notary’s fees for services performed by the plaintiff at the request of California Trust and Savings Bank, which fees were paid to and retained by said bank in a trust fund, and determined to be the property of the plaintiff. The action is in the nature of

assumpsit,

for money belonging to the plaintiff had and received and retained in a trust fund of the bank, the assets of which bank are held in the control and possession of the State Superintendent of Banks by virtue of proceedings which are pending for the liquidation of the bank pursuant to law.

The cause was tried by the court sitting without a jury. Upon some conflict of evidence the court found all the material issues in favor of the plaintiff and rendered judgment against the defendant for the sum of $1119.25. The court specifically found that for a long time prior to the appointment of the plaintiff as a notary public he was employed by California Trust and Savings Bank as a clerk in its trust department on an agreed salary of $90 per month and that said employment continued through the entire period which is involved in this action, all of which salary was fully paid; that prior to February 23, 1931, at the request and for the accommodation of the bank it. procured plaintiff’s appointment, as a notary public, without any valid agreement, as to whom the legal fees which were paid on account of such notary services were to belong; that the plaintiff thereafter, from the date of his appointment as a notary to January 21, 1933, at the request of the bank, duly protested notes, checks, drafts and trade acceptances, administered oaths and acknowledged written instruments as required by law for which services the legal fees were paid by customers of the bank to the bank and deposited in a special separate trust fund therein, and

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retained by the bank in the aggregate sum of $1119.25, which belongs to the plaintiff,' no part of which has been j paid to him; that no demand was made upon the bank for this money until after the assets of the bank were taken possession of by the defendant in the proceeding now pending for the liquidation thereof, after which a duly itemized and verified claim therefor was presented for payment and rejected, and that the defendant now holds in his possession said sum of money in trust for and belonging to the plaintiff. The court did further find that by his failure to demand payment! of said fees for a period of nearly two years, and by personally collecting and turning over to the bank some- of said fees, the plaintiff acquiesced in the bank retaining said money as its own property, but that the last-mentioned implied agreement was without consideration and void. Thereupon judgment was rendered in favor of the plaintiff for the sum of $1119.25, from which judgment the defendant has appealed.