McGorray v. Stockton Savings & Loan Society

CHIPMAN, C.

Plaintiff brings the action to recover from defendant bank twelve thousand seven hundred and seventy-eight dollars and five cents alleged to have been deposited with the hank by plaintiff on September 19, 1894, with instructions “to pay the same to Thomas Cunningham, sheriff of San Joaquin county, provided the said sheriff called for the same and left with the bank for plaintiff a certificate of redemption of certain real property on or before the fifteenth day of November, 1894.” The complaint further alleges that “'the said sheriff having failed to call for said money, and leave fox plaintiff with said bank said certificate of redemption, and the time for so doing having elapsed, the plaintiff demanded of said defendant hank .... the amount of money deposited with it as aforesaid,” which was refused, etc. This demand is alleged to have been made about November 15, 1894. Upon this complaint judgment was demanded against the defendant hank.

The hill of exceptions shows that on motion of defendant the court ordered plaintiff to bring in Cunningham as a party to the action by proper amendment; that thereafter plaintiff filed an amended complaint in the title of which he named Cunningham as defendant; that no allegation was made of or concerning Cunningham, or any interest asserted by him in the money in controversy; that Cunningham appeared by general demurrer and it was sustained by plaintiff’s consent, and plaintiff’s counsel refusing to amend as to Cunningham, and plaintiff consenting, judgment on demurrer was given in favor of Cunningham, and he seems to have passed out of the case. The court found that on September 19, 1894, plaintiff deposited

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with the defendant hank twelve thousand seven hundred and seventy-eight dollars, and at his request the hank issued to plaintiff a certificate of deposit as follows:

“No. 61,575.

“STOCKTON SAYINGS AND LOAN SOCIETY.

“Certificate of Deposit 15.

“Stockton, Cal., September 19, 1894.

“B. McGorray has deposited in this bank ($12,778) twelve thousand seven hundred and seventy-eight dollars, payable to himself, or order, on return of this certificate properly indorsed.