Arena v. Bank of Italy

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 197

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 198 This appeal is from a judgment in the defendants' favor in an action instituted by the plaintiff to recover damages arising from the alleged wrongful release of an attachment. The facts, as shown upon the trial and found by the trial court, in so far as they are necessary to a decision of this cause, are the following: For some time prior to July 22, 1919, one Luigi Dellaira had been doing business under the name of "California Grape Association" and under that name had come into the possession of certain merchandise consisting of 204 barrels of olives, 11 crates of empty half-gallon cans, 349 cases of tomato puree, and 72 cases of Grinola oil, which said merchandise was of the value of about $8,000 and was on said above date situate in certain premises on Front Street, in San Francisco, which, prior to and at said date, were rented and occupied by said Luigi Dellaira and constituted his store and salesroom while doing business under said name; that on July 22, 1919, the plaintiff in this action commenced an action against said Luigi Dellaira, under both names, to recover upon an alleged indebtedness *Page 199 of $3,328.83, and on said date procured a writ of attachment proper in form to be issued directing the sheriff of the city and county of San Francisco to attach the said property of said Dellaira to cover and secure said claim; that pursuant to said writ the said sheriff did duly levy upon, attach, and take into his possession the aforesaid merchandise; that on said July 22, 1919, and while the said sheriff so held the said property and the whole thereof under said attachment the Bank of Italy presented to and served upon the said sheriff its third-party claim to the whole of said property together with its demand for the release thereof, supported by the affidavit of one of its officers, wherein was set forth the corporate character of said bank, the authority of its said official to make said affidavit, the fact of the levy of said attachment, the description of said property and its location and which affidavit then proceeded to state: "That the following goods in said store are the property of the Bank of Italy, viz.: 204 Barrels of Olives; 11 crates of empty half gallon cans; 349 cases of Tomato puree; 26 cases of Tomato oil; 46 cases of Grinola oil; . . . that said goods hereinabove described are of the value of about Thirty Thousand ($30,000) Dollars; that the Bank of Italy became owner of said goods by an assignment given by the defendant L. Dellaira and the defendant California Grape Association to the said Bank of Italy to secure the payment of a promissory note in the sum of Thirty Thousand ($30,000) Dollars." That upon receiving said third-party claim the said sheriff notified the plaintiff thereof and demanded that said plaintiff indemnify the said sheriff against said claim; that upon receiving such notice and demand the plaintiff did not file or appear to file any indemnifying bond, but did immediately notify said sheriff in writing that said claim was invalid and insufficient for the reason that it affirmatively showed upon its face that said Bank of Italy had no ownership of or right to the possession of said attached property, and in so doing directed the attention of the sheriff to certain sections of the codes and to certain decisions of this court which were cited as sustaining the plaintiff's contention as to the invalidity on its face of said claim. Thereupon, and on July 24, 1919, the Bank of Italy filed with the said sheriff an amended affidavit in support of its said claim wherein it undertook to set forth as the source and foundation of its *Page 200 title and claim to said property certain transactions between itself and said Dellaira antedating said attachment and which may be briefly stated as follows: That on and prior to June 4, 1919, the said merchandise had been pledged by said Dellaira to said bank to secure a certain indebtedness due by him to it but that on said June 4, 1919, the said bank, pursuant to certain agreements then entered into between himself and it, had permitted the said Dellaira to take and have the possession of said merchandise and to remove the same from the warehouse wherein said merchandise had been stored pursuant to said pledge and to take the same to his said premises on Front Street in order to sell and dispose of the same; that the arrangement under which the said Dellaira was thus given possession of said merchandise was embodied in certain so-called "Trust receipts," which were set forth in full in said amended affidavit and which, in substance, provided that said merchandise was the property of said Bank of Italy and that said Dellaira agreed to take and hold said goods in trust for said bank and as its property and with liberty to sell the same for its account, but with the right in the Bank of Italy at any time to cancel the trust and take possession of the goods and of the proceeds thereof. Upon receiving this amended affidavit and claim the sheriff released said goods without any further demand upon the said plaintiff for an indemnifying bond and without any further notification other than a telephone message to the attorney for the plaintiff to the effect that the said sheriff had received said amended affidavit and was on his way to release said property, which he immediately proceeded to do. Thereupon the plaintiff, after demanding of the Bank of Italy and of the sheriff redelivery of said property to said sheriff, and after their refusal to comply with such demand, and after prosecuting his action against said Dellaira to judgment and vainly attempting to satisfy an execution issued thereon, commenced the present action. The trial court, upon its findings of the foregoing facts, gave its judgment in the defendants' favor, whereupon the plaintiff took and prosecutes this appeal.