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

DORAN, J. In an action for damages, the jury returned a $20,000 verdict in favor of plaintiff. A motion by defendant for a judgment notwithstanding the verdict was granted. This is an appeal from the judgment.

The controversy relates to two checks issued by appellant and which were returned to the payee because of insufficient funds. The only issue involved is “Whether the trial court was correct in concluding that there was no substantial evidence sufficient to justify the jury’s verdict.”

The facts, as recited in respondent’s brief and which are supported by the record are, in part, as follows, “Sometime during the month of September, 1950, plaintiff became the sole owner of Pacific Motors, for which a Hudson franchise had been obtained. In September, 1950, Commercial Credit Corporation began the financing of new cars being sold by plaintiff. As part of this financing arrangement, plaintiff gave Commercial Credit Corporation a power of attorney authorizing it to execute trust receipts on his behalf covering vehicles to be financed. Pursuant to this power of attorney, Commercial Credit Corporation in December, 1950, and January, 1951, having financed the purchase of two new vehicles, executed trust receipts to itself as entruster on behalf of plaintiff as trustee describing these vehicles. These vehicles were sold by plaintiff in February, 1951. Instead of immediately turning the proceeds from the sales of these vehicles over to Commercial Credit Corporation, plaintiff kept and used the money in direct contravention of the terms of the trust receipts until a demand for the money was made by the inspector of Commercial Credit Corporation on May 10, 1951.

“On Thursday, May 10, 1951, a ‘flooring’ inspection of plaintiff’s place of business in order to ascertain the presence or absence of the vehicles for which trust receipts had been issued was made by John Irwin, District Manager of Commercial Credit Corporation. As a result of physically checking the motor numbers of the vehicles then on the plaintiff’s premises, Irwin discovered that the two vehicles mentioned above were not present. Upon Irwin’s demand that plaintiff either produce the vehicles or pay for them, plaintiff gave [730]him two cheeks in payment, one in the sum of $2,045.31, and the other in the sum of $2,252.63, both dated May 10, 1951, and both drawn on the Tenth and Pacific Branch of the defendant bank. This transaction took place about 3:00 o’clock in the afternoon of Thursday, May 10. These two checks were delivered by Irwin to the bookkeeping department of his company on the morning of Friday, May 11, 1951, and were subsequently deposited by that company in its account with the Security-First National Bank, Hill and Atlantic Branch, Long Beach.