Borden v. Berg

FILES, P. J. Plaintiff, as executrix, brought this action against the First National Bank of Elsinore and Beckie Berg to recover money which had been deposited in a savings account by the decedent, Benjamin Borden, and allegedly converted by the bank. The bank claimed the money as payment of a note which had been endorsed and guaranteed by Borden. After a court trial, judgment was entered for defendants. Plaintiff is appealing from the judgment and from an order denying plaintiff’s motion for a different judgment, made under Code of Civil Procedure section 663.

The underlying circumstances may be stated briefly. During the period between 1955 and 1960, Benjamin Borden and Beckie Berg were associated in the operation of a hotel [171]in Elsinore. That this business relationship was somewhat informal and confused is reflected by the litigation reported in Berg v. King-Cola, Inc., 227 Cal.App.2d 338 [38 Cal. Rptr. 655].

On June 11, 1959, at the request of Borden, the bank loaned $5,000 on. a note executed by Beckie Berg as maker. The note was made payable to Borden, who signed an endorsement and guaranty on the back side of the note in the following language: “_hereby guarantee payment of the within note, or any renewal or extension thereof, and all expense of collection thereof, and waive demand, presentment for payment, protest and notice of protest and consent that the time for payment may be extended without notice to Benjamin Borden.” The note was payable on “Demand or June 9, 1960,” and bore interest at the rate of 5 per cent.

On August 5, 1959, the bank made another loan of $2,200 upon a note identical in form with the first one except that the due date was “Demand or February 3, 1960.”

These notes were unsecured, except to the extent that Borden had $10,000 on deposit in a savings account with the bank. At the time the second note was given, Mr. Gough, the president of the bank, expressed concern over the lack of security, and Borden replied, in substance, that he had money in his savings account which would stand good for his obligation.

Borden died February 15, 1960.

As of June 1960 nothing had been paid on either note, and the president of the bank was concerned because he was under criticism by bank examiners. He called in Mrs. Berg and told her the bank must have a current note for its files. On June 13, 1960, Mrs. Berg paid the accrued interest and gave the bank her note in the amount of $7,200, with interest at 6 per cent, payable December 10, 1960. No payments were made by Mrs. Berg thereafter. On August 31,1961, there was a balance of $7,660 in the savings account of Benjamin Borden. On that date the bank took this balance from the savings account and applied it on the note.