Davis v. Donohoe-Kelly Banking Co.

McFARLAND, J.

This action was brought by the assignee in insolvency of Mary E. Pleasant to recover a certain tin box and its contents, or the value thereof, alleged to have been deposited by said Pleasant with defendant in the year 1898. The case was tried without a jury, and the court made findings and rendered judgment for defendant. From the judgment the plaintiff appeals.

The appeal is upon the judgment-roll which consists of the pleadings, findings, and the judgment. There is no bill of exceptions, and, of course, no question as to the sufficiency of the evidence to support the findings, or as to any error committed during the trial. The claim of appellant for reversal rests only upon the contention that the findings do not support the judgment, and that upon their face the judgment should have been for appellant.

The material findings of the court are these: In the year 1896 the said insolvent Pleasant gave to the defendant at its banking house the tin box locked, upon which was painted in large letters the name “Teresa P. Bell,” and on a wrapper inclosing the box was written “Not to be delivered to any one except Mrs. T. P. Bell or Mrs. M. E. Pleasant.” It contained jewels and precious stones to the value of fifteen thousand dollars. The defendant kept the box for about three years, no one during that period having demanded it; and on

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or about April 1, 1899, the said Teresa P. Bell demanded the box of the defendant and the latter then delivered it to said Mrs. Bell. At the time of the delivery of the box to the defendant by Mrs. Pleasant the latter was the servant and agent of Mrs. Bell, receiving from her a monthly salary. She had no ownership of the box or its contents and acted merely as Mrs. Bell’s agent. Mrs. Bell was then and ever since has been the sole owner of said box and its contents. Upon the above facts, considered alone, it is obvious that Mrs. Bell had the right to demand the box, and that the defendant was perfectly justified in delivering it to her; and we do not think that certain other facts relied upon by appellant at all affect the obvious conclusion above stated.

The other facts relied upon by appellant are these: On March 26, 1898, certain creditors 'of Mrs. Pleasant filed in the proper court a petition in involuntary insolvency, praying that she be adjudicated an insolvent debtor; upon the filing of said petition the court made the usual order that she appear- and show cause, etc., and also prohibiting the payment of any debts or the transfer of any property by her. She appeared and- contested the insolvency proceedings, and after the contest she was duly adjudicated an insolvent, and on June 22, 1899, an assignee was elected and qualified and the clerk executed a written instrument assigning and conveying all of the insolvent’s property to the assignee. On January 19, 1902, about three years after the delivery of the box by defendant to Mrs. Bell, the assignee demanded the same of defendant. At the time of the delivery of the box to Mrs. Bell the defendant had knowledge of the filing of said petition in insolvency.