Early v. Town of Redwood City

McKinstry, J.: It is urged by appellant, that the assignment from John Caddy to intervenors does not include the three bonds of defendant alleged to have been seized, under a writ of attachment, by appellant. The assignment is in words and figures following:

“ Redwood City, May 23rd, 1877.

“ For value received, I have sold and assigned, and do hereby transfer, to B. F. Baker and Dunham, Carrigan & Co. all my right, title, and interest in the bonds of the town of Redwood City, known as the water-works bonds, except so much of the proceeds of the sale of said bonds as is required to repay to the Pacific Bank of' San Francisco all money advanced to me, and for which said bonds are held as collateral security; [195]and I do hereby authorize and instruct said Pacific Bank to transfer to B. F. Baker and Dunham, Carrigan & Co. all of my right, interest, and ownership, in accordance with the above agreement. John Caddy.”

Counsel for appellant place some stress upon the words “ all my right, title, and interest” in the assignment, and inquire: “ If it was intended to transfer any interest in other than the $20,000 of bonds, why not assign the other bonds absolutely? ” The reason would seem to be sufficient, because the other bonds had not been delivered to Caddy. The general operative words of assignment would seem to be broad enough—“ all my right * * * in the bonds of the town of Eedwood City, known as the water-worlcs bonds.” We think the exception does not exclude from the transfer any part of the bonds in which Caddy had a present or contingent interest. All the bonds ($25,000) which the town was authorized to issue were, at the date of the assignment, in the Pacific Bank. Twenty thousand dollars of bonds had been delivered to Caddy, and by him pledged to the bank. Of the remaining $5,000 in the bank, Caddy would be entitled to recover $3,108.83, in case he should perform all the conditions of the contract between him and the town, by him to be performed. So much of the recital in the assignment as intimates that “ said ” bonds were held by the bank as collateral security is, if taken literally, an evident mistake, since only a portion of the “ water-works bonds ” were so held; it is not a limitation upon the assignment. The last clause only requires the bank to recognize the assignee as the general holder of the bonds by it held as collateral.

To attach tangible property, or garnishee a credit, it is essential that the property or credit exist. If, therefore, the town of Redwood City owed Caddy nothing when a copy of attachment was served upon the town officers, in the action Peter Early v. John Caddy, the plaintiff in such action secured no lien upon any sum, in cash or bonds, which might subsequently become due from the town to Caddy. (Code Civ. Proc. § 542.)