French v. Orange County Investment Corp.

YORK, J.

On March 28, 1928, plaintiff commenced an action against defendants for fraudulent conversion of a deed, executed by plaintiff’s assignors. The complaint in said action prayed that defendants account to plaintiff for the value of plaintiff’s interest in the real property conveyed by the deed, to wit: the sum of $2,673.64, and that plaintiff have judgment therefor and for $10,000 exemplary damages. Thereafter, upon motion of plaintiff, the action was dismissed as to all defendants except the defendant bank. On January 19, 1929, the action was tried before a jury which resulted in a judgment for plaintiff. Defendant’s motion for a new trial was granted, and a second trial was had on November 1, 1929, which again resulted in a judgment in favor of the plaintiff, said second judgment being for the sum of $2,142.27.

Plaintiff appeals from this judgment, specifying as grounds for reversal seven errors of the court (1) in refusing to allow plaintiff to examine C. J. Shepherd, president of defendant bank, under section 2055 of the Code of Civil Procedure; (2) in overruling plaintiff’s objection to a question asked of one of the witnesses; (3) in refusing to permit plaintiff to amend his complaint to conform to the evidence; (4) in modifying plaintiff’s requested instructions as to measure of actual damages; (5), (6) and (7) in refusing to give certain instructions requested by plaintiff.

Defendant bank appeals from the judgment and also from an order of the court denying its motion for judgment notwithstanding the verdict, and contends that the evidence is insufficient to sustain the verdict and judgment. Upon stipulation of counsel the two appeals were consolidated.

The transaction out of which the action and these appeals arise appears to be as follows: On or about December 13, 1927, the then owners of the property here involved, through their agent in Portland, Oregon, by letter mailed December 9th, deposited a “deed in blank” with the defendant bank with instructions to deliver the same to the Orange County Investment Corporation when the bank held $300 net to the owners. The Investment Corporation

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had undertaken to act as agent in finding a purchaser for the property. The owners were residents of Oregon, and ignorant of the true value of the property. They acted in reliance upon representations made to them by the Investment Company that the lots were worth not over $500 each, whereas in fact their market value was $1,250 each. On December 29, 1927, at 9 :30 A. M., the bank received written instructions from the said agent to the effect that unless the money was received during banking hours of that day to return the deed. Between the time of the receipt of these instructions and 11:30 A. M. of the same day the escrow officer of the bank, who was also assistant cashier, was directed by. the president of the bank to insert the name of said president as grantee in the deed and charge the president’s account with the sum of $300. At 11:30 A. M. of the same day the escrow department of the bank received a telegram from the owners’ agent reading: “Do not deliver Hodder deed mailed ninth return immediately.” Later in the day the escrow officer, at the direction of the president, sent the following wire to the agent: “Telegram and letter received too late to hold deed stop remitting today.” The remittance of $300 was sent to the agent, and the deed was recorded on January 4, 1928. Shortly thereafter the property was sold at a profit.