Moshos v. General Casualty Co. of America

HERNDON, J. General Casualty Company of America appeals from a judgment rendered against it following a non-jury trial. Judgment was entered against the Colonial Escrow Corporation and Jack D. Bowman also, but no appeal has been taken by these defendants. As grounds for reversal, appellant urges that the evidence is insufficient to support the judgment and that the court abused its discretion in denying appellant’s motion for a continuance made on the day of trial for the purpose of seeking a substitution of attorneys. With one exception, all the material and relevant facts were established either by the allegations and admissions in the pleadings or by stipulations made during the pretrial proceedings.

At all times here material, defendant Colonial Escrow Corporation was bonded by appellant in accordance with the provisions of sections 17202 and 17203 of the Financial Code. During this same period and until some time in mid-December of 1958, defendant Jack D. Bowman was the president of Colonial Escrow Corporation, owned all of its stock, and paid the salary of its only other employee.

Shortly prior to September 17, 1958, plaintiff and defendant Jack D. Bowman entered into an agreement whereby plaintiff would lend to Bowman the sum of $8,000 and receive in return Bowman’s note for $10,000 plus interest. As security for this loan, Bowman agreed to assign to plaintiff a third party note and trust deed and to execute a grant deed conveying to plaintiff certain other real property. It was further agreed that the documents evidencing these items of security, together with copies of policies of title insurance and fire insurance, would be deposited with defendant Colonial Escrow Corporation pending repayment of the loan. Plaintiff at the time was unaware of Bowman’s relationship with the escrow company.

[427]Bowman signed at least one copy of a document captioned “Assignment Instructions,” executed all the necessary security documents, and delivered them to plaintiff. Plaintiff paid Bowman the $8,000 agreed upon, also signed at least two copies of the “Assignment Instructions” and transmitted one of them and the security documents to the defendant escrow company. On the “Assignment Instructions” appeared the name and address of the Colonial Escrow Corporation, the date and the words: “Escrow No. 5802.” The instructions themselves read as follows:

“The undersigned agrees to hand to Jack D. Bowman, outside of escrow the sum of $10,000 when you can hold for the undersigned the following: [the security documents above described]. It is understood that the undersigned is to be at no expense in connection with this transaction.” A line for plaintiff’s signature followed and immediately below it there appeared the further statement that: “The above instructions are hereby accepted and agreed to in their entirety, and charges in connection herewith are to be charged to the account of the undersigned.” A line then appeared below which there was typed the name of Jack D. Bowman. There was no designation to indicate his connection with the escrow company.