Nathan v. O'Donnell

KERRIGAN, J.

This action was brought by plaintiff to recover a certain sum of money held under attachment. Plaintiff recovered judgment, and defendants appeal.

The facts are as follows: In August, 1918, plaintiff, as the California department commander of the United Spanish War Veterans, appointed one John H. Simmons chairman of a committee for the purpose of arranging transportation for the California delegates to the national meeting of that organization to be held in Baltimore, Maryland. As such chairman Simmons collected from seven delegates the sum of $538.67 to cover the cost of railroad and Pullman tickets to be purchased by him entitling these delegates to transportation from San Francisco to Baltimore. The money so collected was deposited by Simmons in his personal account with the Bank of California National Association in San Francisco. Immediately thereafter Simmons purchased the tickets from the Southern Pacific Company, giving in payment thereof seven checks drawn upon said bank, the aggregate amount of which was the precise sum he had collected, viz., $538.67. Two days thereafter, and before these checks were presented to the bank for payment, defendant O’Donnell commenced an action against Simmons, in which an attachment was issued, pursuant to which defendant Finn, as sheriff, garnisheed all sums in the Bank of California standing in the name of Simmons. Thereafter the checks were presented by the railroad company for payment, but by reason of the garnishment the bank' refused to honor the same. The railroad company thereupon notified Simmons that the tickets would be canceled. These facts were immediately reported by Simmons to plaintiff, who, to remedy this urgent situation, voluntarily drew a check on his personal account with the First National Bank in favor of the Bank of California for $538.67 and sent it to the latter, with the statement that the remittance was made for the express purpose of having the bank meet and honor the above-mentioned checks drawn by Simmons in favor of the railroad company, and this arrangement was carried out. Plaintiff thereafter took assignments from Simmons and from each of the persons who had paid Simmons for transportation of their interest in such sums and thereupon in

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stituted this action against the bank to recover the amount. The bank paid the sum in dispute under order of the court to the Savings Union Bank to be held by it as a savings account subject to the order of the court; the Bank of California was discharged from further liability, and Thomas F. Finn, as sheriff, was substituted in its place and stead as defendant.