Kirby v. Bank of America National Trust and Savings Ass'n

SCOTT, J., pro tem. Plaintiff left four promissory notes or “bonds” with defendant for collection on August 9, 1930. The latter gave him a written receipt as follows: “6th & Main Branch Collection No. 6032345 Date 8-9-30 Bank of America of California Name S. P. Kirby Address [371]Box 1573, Station C. L. A. Received for collection: Date 8-9-30 payor American Mortgage Co., Amount Over Due de documents attached, 1047-49 S. Hill, Bonds #rm-lo-ll-12 & 13 Promissory Gold Note—Mayfair Instructions $1000.00 each 7%. This is an advice only, is not negotiable and is not to be construed as establishing any credit direct or indirect Credit account of S. P. Kirby, 63105 Term (old) (Signed) W. W. Behrman, teller (On reverse side of foregoing) $4-1000 Bonds called—terms are—Principal & plus accrued int to date of redemption plus a 2% bonus on principal. $4000 prin. Int at 7% to date 80.00 Bonus (Signed) W. W. Behrman, teller.” Three days later defendant sent the notes by messenger to office of American Mortgage Co. and left them there with that company having secured its receipt therefor. The mortgage company had been the original payee of the notes, the maker apparently being an insolvent “dummy” and said company before sale of these instruments to plaintiff had executed an indorsement on the notes which purported to be “without recourse”. Said mortgage company, upon receiving the notes from defendant, surrendered them to the holder of the trust deed securing the notes and the property was reconveyed. The notes thereby became valueless. The mortgage company never remitted the value of the notes to defendant and plaintiff never received the notes again nor any compensation therefor.

In October, 1930, he demanded the notes or the money of the defendant a,nd made repeated visits to the bank making the same request. Defendant neither secured the notes nor compensation therefor from the mortgage company for the plaintiff. Finally on April 7, 1931, the mortgage company became insolvent. This action was filed October 13, 1932. The matter was submitted to a jury which returned a verdict for plaintiff for the amount of the notes, interest and bonus which was provided for in the notes. From judgment entered thereon defendant appeals, contending that the action was barred by the statute of limitations and that the evidence is insufficient as to any negligence of defendant.

It is appellant’s contention that the Code of Civil Procedure, section 339, fixing a two-year limitation in case of an action on a contract not in writing would preclude recovery because more than that time elapsed between