Rissman v. National Thrift Corp. of America

SCOTT, J., pro tem. On March 16, 1931, defendant executed and delivered to payee an installment note in the principal sum of $25,000, payable in monthly installments of $4,000 each, eommeneing June 16, 1931, with a final payment of $1,000 in December of that year. The payee of [449]the note was Sierra Reserve Holding Company, Ltd., a Nevada corporation. On the same day that it was executed, payee assigned the note to Edison Securities Company, a corporation, as collateral security for the payment to it of a note of the Sierra Company to it, and the note was placed in escrow with Metropolitan Trust Company, a corporation, as escrow-holder. Thereafter, on June 26, 1931, one installment of $4,000 having been paid, Sierra Company assigned its interest in the balance of the note to Daniel Rissman, and the latter on that date assigned it to plaintiff. Daniel Riss-man testified that as agent for plaintiff he demanded payment of defendant of the second installment the day after it became due, to wit, July 17, 1931, stating that if defendant could not pay it he demanded full payment of the note and intended to bring suit immediately. The payment was not made and plaintiff filed suit on July 21, 1931. After the commencement of the action, on October 19, 1931, Edison Securities Company assigned its interest in the note to plaintiff for collection. The trial of the case commenced October 21 and concluded October 28, 1931, and the plaintiff recovered judgment for the unpaid principal plus interest and $754.50 attorney’s fees.

Appellant contends that the trial court should have held and found that there was a defect of parties defendant, in that the Edison Securities Company, Metropolitan Trust Company and Daniel Rissman were parties in interest and indispensable to the determination of the case. Defendant did not seek to have joined any of the said parties as defendants which it had the right to ask under the law (Code Civ. Proc., sec. 379). The relationship of Metropolitan Trust Company to the parties, as shown by the evidence, was' that of escrow-holder, that is, a mere agent of the Sierra Company, Edison Securities Company and Rissman, with no interest in the subject matter of the action, its sole duty being to carry out their orders.

It appearing at the trial that both Daniel Rissman and Edison Securities Company had assigned their interest to plaintiff, there was no such defect of parties as to preclude recovery by plaintiff. The note sued upon was delivered at the trial and was admitted in evidence. The payee of a note who has pledged it with a third party but still has a substantial interest therein is entitled to maintain an