Wheelock v. Godfrey

SEARLS, C. This is an appeal by plaintiff from a final judgment in favor of defendants. The cause comes up on the [400]judgment-roll, and, as the appeal was not taken within sixty days after the entry of judgment, the appeal must he determined upon the questions presented by the pleadings, findings and judgment. An appeal from an order denying a new trial in the same case this day decided (100 Cal. 578, 35 Pac. 317) contains a sufficient reference to the facts in the case, and they will not be repeated here.

The first finding is to the effect that all the allegations of plaintiff’s complaint, from the commencement thereof down to and including the averment that the moneys referred to in the complaint, viz., $7,045.89, were still in charge of the defendant bank, are true. It is objected to this finding that it is impossible to determine from it the averments found true and those not sustained. It is as comprehensive and explicit as the complaint to which it refers, and, as it finds all the averments of the complaint true down to and including a given averment, we fail to see any difficulty in determining precisely what the court means. The averments thus found true may be epitomized as follows: Defendant Arabella D. Godfrey is a widow; the other defendant is an incorporated savings bank. On the 1st of October, 1888, Albert G. Whee-lock (plaintiff’s testator) had deposited $7,045.89 in the bank for loaning and safekeeping, and had received in evidence thereof a bank-book, in which he was credited for the amount as a deposit. On or about October 1, 1888, defendant Godfrey presented to the bank this deposit-book, with an assignment thereof in writing, purporting to be executed by Whee-lock, assigning the said money and account, and demanded a transfer and delivery to her of said moneys. The bank, in pursuance of said demand, transferred to her credit on its books the amount, and gave her a deposit-book, crediting her therein for the amount. The money has not been drawn from the bank, and it is still in its charge and custody. The court then proceeds to find at length, what need only be referred to briefly, that on October 1,1888, the said instrument of transfer was signed, executed and delivered by Wheelock to defendant Godfrey, and that, when so executed and delivered, he was not of weak or unsound mind, or mentally incompetent to make the transfer, but was of sound mind, and competent to make such transfer; that the assignment was not procured by or through undue influence or control by Godfrey over Wheelock, [401]