Bank of America National Trust & Savings Ass'n v. Richardson

STURTEVANT, J. In an action for an accounting the trial court ordered judgment in favor of the defendants and the plaintiff has appealed. In its complaint the plaintiff alleged that it is a corporation; that Friend W. Richardson was building and loan commissioner until July 19, 1934, and he was then succeeded by Louis C. Drapeau, who was such officer at the time the action was commenced; that Lincoln Mortgage Company, Prudential Building Loan Association, and North American Building Loan Association were corporations ; that on May 28, 1929, Lincoln Mortgage Company sold to Prudential Loan Association an interest amounting to $65,827.78 in certain promissory notes and deeds of trust in the aggregate amount of $94,705.59 and that it reserved to itself an interest amounting to $28,877.81; that on February 10, 1931, the Prudential sold all of its property to North American; that on May 21., 1931, the Lincoln sold its reserved interest to this plaintiff; that on July 8, 1932, the building and loan commissioner took possession of the North American and now retains such possession; that the North American and its successors have collected large sums of money on the promissory notes and deeds of trust; that they have never accounted to the plaintiff; that the building and loan commissioner after he took possession of the North American never caused a copy of notice to all persons having claims against the North American to be mailed to plaintiff and never notified plaintiff to file a claim; that on June 5, 1933, the plaintiff made a written demand upon the North American for an accounting but the building and loan commissioner made no response; that on July 6, 1933, the plain[556]tiff made an oral demand upon the commissioner and he agreed to give the demand consideration as soon as he could find time to do so; that on January 31, 1934, the plaintiff made a written demand on the commissioner for an accounting but he refused to make such accounting.

The defendants filed an answer in which they admitted many of the allegations contained in the complaint but they also pleaded certain new matter. They alleged that on July 8, 1932, Friend W. Richardson, the then building and loan commissioner, took possession of the North American under the provisions of section 13.11 of the California Building and Loan Act (Stats. 1931, p. 483) and commenced to liquidate that corporation; that on July 19, 1934, Friend W. Richardson was succeeded in office by Louis C. Drapeau and that the latter retained possession of said association and has proceeded with the liquidation thereof; that on December 16, 1927, Seaboard Building Corporation executed and delivered to Lincoln. Mortgage Company a promissory note in the sum of $67,500 payable in instalments and bearing interest at 7 per cent per annum; that said note was secured by a deed of trust which was recorded on the 4th day of February, 1928; that on the 16th day of May, 1929, Lincoln Mortgage Company sold to the Prudential the last-mentioned note and deed of trust; that as a part of the consideration of said sale of said note and deed of trust Lincoln Mortgage Company executed and delivered to the Prudential a guaranty; that said guaranty was as follows (here the defendants pleaded the alleged document in haec verba); that among other things said guaranty provided: 1 ‘ Please be advised that this company guarantees the payment of the balance due on the said loan above mentioned in the event that the same remains unpaid for a period of three months after the maturity thereof, namely, December 16, 1930”; that there is now unpaid on said note the sum of $45,000 together with interest at 7 per cent from March 16, 1930; that on April 17, 1930, the Prudential sold to the North American said promissory note, and the deed of trust, and the guaranty above mentioned; that a's building and loan commissioner the defendant Louis C. Drapeau is now the owner and holder of said promissory note, deed of trust, and guaranty; that on the 17th day of April, 1930, the North American succeeded to all of the properties of the Prudential; that on