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District Court of Appeal, Second District, Division 2, California.

KING v. SMITH et al.*

Civ. 16322.

Decided: May 19, 1948

Lyman A. Garber, of Beverly Hills, for appellant. Hugo A. Steinmeyer, G. L. Berrey, and Geo. L. Beckwith, all of Los Angeles, for respondent Bank of America. Oliver O. Clark and Robert A. Smith, both of Los Angeles, for respondent John Cawog.

This action involves two separate sums of money. Plaintiff sued to recover $3,000 specially deposited with Bank of America as a guarantee of an obligation of defendant Smith to defendant Cawog, also to recover $800 advanced by him to Smith for the purpose of paying an indebtedness of the latter to Cawog. The court rendered judgment that plaintiff reover only the sum of $117.45, the balance remaining in the hands of the bank after deducting attorneys' fees of the bank which the court allowed in the sum of $250 and the amounts paid by the bank out of the $3,000 deposit of which $1576.67 was paid on an execution in an action brought by Cawog against Smith and $1055.85 was ordered by the court to be applied on a judgment in a second action by Cawog against Smith, are refused to render judgment in favor of plaintiff for the sum of $800, the second amount involved. Plaintiff has appealed from the judgment.

Cal.App.wog was the lessee of the Wawona Hotel in Los Angeles owned by Emma Arenz. He desired to sublease to Smith and wanted a guarantee from the latter. Plaintiff, whose home and place of business were in Oxnard, some 60 miles distant from Los Angeles, was a friend of Smith. Cawog and Smith resided in Los Angeles. On February 8, 1945, they went to plaintiff's home for the purpose of obtaining money from plaintiff as a guarantee that Smith would fulfill the terms of the sublease from Cawog. They told plaintiff that the rent under the sublease was $600 per month. Plaintiff went with them to the Oxnard branch of defendant Bank of America where he obtained $3,000 in cash from his safe deposit box and delivered it to N.W. Elmelund, manager of the branch bank. Elmelund gave plaintiff a receipt for the sum of $3,000, bearing an escrow number, signed by him as assistant cashier-escrow officer of the bank. Elmelund prepared escrow instructions having the same escrow number which were signed by Smith and Cawog and they also signed and left in escrow the document subleasing the hotel to Smith, at a rental of $600 per month. There is nothing in the escrow papers calling for any other amount. Plaintiff took no part in this transaction, was not a party to the escrow, signed no papers, and did not know anything concerning the character or contents of the escrow instructions or of the papers deposited therein. He never saw the original lease, the sublease or the eacrow instructions. After delivering the money to Elmelund plaintiff walked away and engaged in conversation with the assistant manager of the bank at a point some distance from where Elmelund was preparing the papers. Immediately after the documents were signed Cawog and Smith returned to Los Angeles and Smith went into possession of the hotel.

At some time after the transaction at the bank at which the sublease at $600 per month was signed Smith and Cawog entered into another sublease or agreement whereby the rental to be paid by Smith was fixed at $1,350 per month. Plaintiff was not informed of the latter sublease nor of the additional rental which Smith agreed to pay.

Thereafter Cawog sued Smith for a balance alleged to be unpaid on the rental for June and July, 1945, alleging that the rental was at the rate of $1,350 per month. Plaintiff was not made a party to and had no notice of the action. Cawog recovered a judgment against Smith on August 14, 1945, upon which execution was issued on August 17, 1945, for $1,576.70 and levied on the Oxnard Branch of defendant bank. Without notifying plaintiff the bank paid the amount of the execution to the sheriff and charged it against plaintiff's $3,000 deposit.

The foregoing statement of facts is uncontradicted.

On Friday, July 20, 1945, Smith and Cawog again went to plaintiff's home in Oxnard where they informed him that Smith was in default and the latter requested a loan of $800 from plaintiff for the purpose of paying the amount he claimed to owe Cawog. They did not inform plaintiff that they had signed a second sublease for $1,350 per month, nor did they inform him that Cawog had already sued Smith in the action above mentioned for unpaid rents and that the action was then pending. Plaintiff testified that he asked Cawog how much Smith owed him and Cawog answered that the amount of the unpaid rent was $800; that he asked Cawog ‘If I give you $800 will that clear him?’ Cawog replied, ‘Yes, that's all right.’ Cawog testified that he told plaintiff that Smith owed him $1800, but he did not deny that he answered that $800 would ‘clear him,’ meaning Smith. Plaintiff then wrote a check in favor of Smith for $800 which Smith immediately endorsed in plaintiff's presence and delivered to Cawog. Cawog endorsed the check and received the proceeds of it. The bank's endorsement stamped on the back of the check indicates that it was paid on July 20, 1945, Friday, the day on which it was drawn by plaintiff. On the following Monday, July 23, Cawog filed another action against Smith in the Superior Court of Los Angeles County alleging that Smith was indebted to him under the sublease in the sum of $1,877.82. Plaintiff was not a party to that action. Judgment was entered against Smith for $1055.85 which the court ordered paid out of plaintiff's money which he had deposited with the bank as above stated.

After deducting from plaintiff's $3,000 deposit the amount of the execution, the amount ordered by the court to be paid out of plaintiff's funds and the sum of $250 allowed by the court to defendant bank as attorney's fees in the litigation the court rendered judgment in favor of plaintiff against defendant bank for the remainder of $117.45.

Since plaintiff asserts no claim against the bank for the $800 loaned to Smith, the two funds will be discussed separately.

The $3,000 Deposit.

One question in dispute is this: ‘Plaintiff contends that he deposited his money in the bank as a guarantee of Smith's obligation under the sublease. Defendants' bank and Cawog maintain that plaintiff loaned the money to Smith and that the latter deposited it in escrow as security for his own obligation.

While the question of law is in dispute there is no conflict in the evidence concerning the purpose of the deposit by plaintiff. There is no evidence whatsoever that the money was loaned to Smith, or that it was intended by any of the parties as a loan, or that it was deposited as such in the bank. Plaintiff did not deliver the money to Smith and the latter did not agree to repay it. See Civ.Code, sec. 1912. The evidence is all to the effect that it was deposited by plaintiff as a guarantee of Smith's liability by reason of the sublease which called for the payment of rental at the rate of $600 per month. There is no contradiction of plaintiff's testimony in this regard. Plaintiff testified that Smith told him in the presence of Cawog that the rent was $600 per month and that Cawog confirmed the statement; that when they went to the bank there was another discussion about the money and plaintiff told Elmelund ‘The reason I am giving you this money as a guarantee is because it is a wonderful proposition for this Smitty’; that he, plaintiff, did not give any money to Smith; that Smith did not promise to pay plaintiff any part of the profits of the transaction, and did not promise to pay plaintiff any interest on the money deposited; that he, plaintiff, did not give any authorization to the bank or to any of the parties to the transaction with respect to the deposit of the $3,000 before or after he handed it to Elmelund; that he never authorized the modification of the rental agreement from $600 of $1,350 or any other sum; that he never saw the original lease, did not know its terms, and did not know of a provision therein prohibiting the subleasing of the premises except with the express permission of the landlord.

On cross-examination plaintiff was asked the following question: ‘Have you and he [Smith] had any business transactions in which you had advanced any money prior to the time you loaned to him this $3,000?’ He answered: ‘First of all, I didn't loan the money to him, this $3,000; and I never had any business transactions with him.’

Plaintiff had carried a bank account in the Oxnard branch bank and had been acquainted with Elmelund, its manager, for approximately two years before the transaction in question. He had a right to and did have confidence in Elmelund and depended on the latter for protection of his money.

Cawog testified among other things that he and Smith went to Oxnard ‘in order to get the $3,000 to guarantee [the] sublease’ and that that was the sole purpose of the trip. The evidenc given by plaintiff was not denied in any particular.

The record shows that at the time of the trial and for some time previously thereto Smith had been confined in the federal prison at McNeil Island. His deposition might have been but was not taken. Neither Elmelund nor the assistant manager nor any employee of the bank was called as a witness. Elmelund knew what had occurred when the money was deposited and could have testified as to his conversation with plaintiff concerning the deposit and the entire transaction among the parties. The failure of defendants bank and Cawog to take Smith's deposition and of the bank to produce its employees raises the presumption that their evidence, if it had been given, would have been adverse to defendants. Code Civ.Proc., sec. 1963, subdvs. 5 and 6; sec. 2061, subdvs. 6 and 7.

The issues to be tried and determined were clearly defined in the pleadings. Plaintiff alleged that the deposit was a special one made as a guarantee of Smith's obligation. The bank denied the allegation and as a separate defense alleged that the deposit was made in escrow not by plaintiff but by Smith. The burden resting on plaintiff to prove the allegations in his complaint was sustained by the evidence which we have outlined. The burden on the bank to prove its special defense was not fulfilled. Since three witnesses who knew the facts were not called and their absence was not accounted for, we must presume that if produced they would not have given evidence in consonance with defendant bank's special defense.

Defendants maintain that it was as much the duty of plaintiff to produce the witnesses referred to as it was that of defendants. The answer to this contention is that plaintiff did not need the absent witnesses. Both plaintiff and Cawog testified that the money was deposited as a guarantee. Plaintiff stated that he told Elmelund that it was a guarantee and expressly denied that the money was loaned to Smith. There is nothing in the escrow to indicate a loan. Since plaintiff had proved his case by uncontradicted evidence neither necessity nor compulsion rested upon him to call any other witnesses. If the bank's employees would have controverted any of plaintiff's testimony it is presumed that they would have been produced by their employer for that purpose. Their nonappearance adds strength to plaintiff's position.

The sublease was attached to the original lease from Arenz to Cawog and recites that it is ‘subject to all of the terms and conditions as set forth in the lease.’ The lease contains a provision that it shall not be sold, assigned, pledged or hypothecated without the written consent of the lessor. The consent of the lessor to the assignment by Cawog to Smith was not obtained. Since plaintiff guaranteed the obligation of Smith under the sublease and since the sublease never became operative or effective by reason of the failure of the lessor to consent to it, plaintiff's guarantee never became effective.

Cawog testified that before he and Smith went to Oxnard on their first trip they had talked in the office of Cawog's attorney about the monthly rental of $1,350, and two subleases were prepared, one for $600 by Smith's attorney and one for $750 by Cawog's lawyer, and that the documents were signed after they returned from Oxnard. The sublease deposited in escrow called for $600. Plaintiff guaranteed rental at the rate of $600. The change in the terms of the agreement between Smith and Cawog without plaintiff's knowledge or consent released plaintiff from any liability for Smith's failure to pay rent. Civil Code, sec. 2819; Occidental Life Ins. Co. v. McCracken, 19 Cal.App.2d 239, 240, 65 P.2d 130; People v. Fidelity & Deposit Co., 28 Cal.App.2d 325, 332, 82 P.2d 495; First Congregational Church of Christ in Corona v. Lowrey, 175 Cal. 124, 126, 165 P. 440, and cases cited; Diehl v. Davis, 75 Kan. 38, 88 P. 532, 12 Ann.Cas. 548. When a person becomes surety for the performance of a contract and the contract is altered the surety is discharged. Parke & Lacy Co. v. White River Lbr. Co., 110 Cal. 658, 667, 43 P. 202.

Since the money was hypothecated to guarantee the debt or default of Smith and since plaintiff, the owner and depositor of the money, did not sign any memorandum in writing, the purported guarantee is unenforceable. Civil Code, sec. 2793; sec. 1624, subd. 2; Irer v. Gawn, 99 Cal.App. 17, 29, 277 P. 1053; Diamond Coal Co. v. Cook, 6 Cal.Unrep. 446, 450, 61 P. 578. There is no evidence that brings the case within the exceptions enumerated in section 2794 of the Civil Code.

The evidence shows conclusively that the money was deposited with the bank as a special deposit for a special purpose. As such it remained plaintiff's property until he was divested of title to it in a lawful manner. This deposit is similar to that involved in Anderson v. Pacific Bank, 112 Cal. 598, 44 P. 1063, 32 L.R.A. 479, 53 Am.St.Rep. 228, where the plaintiff delivered $2,000 to the acting president of the bank in the president's room to secure sureties who were signing a bail bond for persons who had been held to answer in the superior court. He received a receipt or certificate of deposit for the money aigned by the acting president. Thereafter without his knowledge or consent the money went into the bank vault through the regular channels. The bail bonds were furnished but no loss was suffered by Anderson or the sureties, the defendants having been surrendered into custody by their bondsmen. Anderson demanded the return of his money from the bank which meanwhile had become insolvent. The court held that title to the money had not passed to the bank and that the plaintiff was entitled to its return to him, since it was deposited as a pledge and the pledgee had no right to make general use of it, citing sections 1835 and 2888 of the Civil Code. See also Hastings v. Bank of America, 79 Cal.App.2d 627, 629, 180 P.2d 358.

Since the money was hypothecated by plaintiff as a guarantee of the liability of another, plaintiff was a necessary and indispensable party to any action in which recovery of any part of the fund was sought. Anderson and Hastings cases, supra. Plaintiff did not assume a personal liability and since the money remained merely as a guarantee, Smith had no interest in it and the bank exceeded its power in paying it out on executions against Smith in actions to which plaintiff was not a party. He was entitled to an opportunity of defending against the claim of Cawog. That he would have had a good defense if he had been sued on the guarantee is demonstrated by the facts and the law as above stated.

The facts (1) that plaintiff deposited $3,000 in cash and received a receipt therefor and (2) that the escrow instructions recite that ‘I [Smith] hand you herewith $3,000’ do not create a presumption or even an inference that the two documents refer to the same money, since plaintiff denies all knowledge of the escrow or of any instructions given by Smith and Cawog or either of them and there is no evidence controverting plaintiff's testimony. There is nothing in the record connecting the two amounts. The money belonged to plaintiff and was handed by him personally to Elmelund. Smith could not have delivered plaintiff's money into the escrow.

Plaintiff's rights, as evidenced by the bank's receipt for the money, are not affected by Smith's declaration in the escrow instructions which plaintiff never saw. Code Civ.Proc., sec. 1848. Furthermore the receipt from the bank was a recognition of the property right of plaintiff in the money and the bank is thereby estopped from asserting otherwise. Code Civ.Proc., sec. 1962, subd. 3.

Defendant bank contends that plaintiff saw his property being dealt with by Smith and that it was his duty to assert his right promptly. Defendant asserts, correctly, that Cawog had demanded that security be provided to secure the sublease, but it asserts, incorrectly, that plaintiff knew of the transaction that was taking place between Smith and Cawog. Defendant relies in vain on section 2991 of the Civil Code. Under the circumstances disclosed by the record to which we have referred the bank cannot rely on an estoppel against plaintiff.

The escrow instructions of Smith and Cawog provided that the bank should not be liable for the failure of the conditions of the escrow or for damage caused by the exercise of the bank's discretion, or for any other reason except gross negligence or wilful misconduct with reference to the escrow, or for its failure to ascertain the terms or conditions of any agreement filed in or referred to in the escrow. The bank maintains that it was entitled to stand on the contract, referring to the escrow instructions, as a limitation of its liability. That would be true if the action were by either party to the escrow against the other. Since plaintiff was not a party to the escrow and had no knowledge of its terms the limitation of liability is not applicable to his action against the bank.

There was a provision in the escrow instructions to the effect that in the event ‘that any controversy arises hereunder or that you are made a party to, or intervene in any litigation pertaining to this escrow or the subject matter thereof, you shall be reasonably compensated for such extraordinary services.’ By reason of this provision the bank requested an allowance of $250 as attorneys' fees in the litigation, which the court allowed and ordered paid out of plaintiff's $3,000 deposit. This was error for two reasons: (1) The escrow was between Smith and Cawog and the controversy now in litigation did not arise ‘hereunder,’ that is under the terms of the escrow. No dispute between Smith and Cawog existed or now exists in regard to the escrow. The controversy was and is between plaintiff on the one hand and Smith, Cawog and the bank on the other. It does not arise under the escrow instructions. (2) As we have repeatedly stated, the money in question was a special deposit made by plaintiff and belonged to him and not to either of the parties to the escrow. Plaintiff was under no obligation to pay and did not agree to pay the expenses of the bank arising under the secrow to which he was not a party.

In Hardy v. Hunt, 11 Cal. 343, 70 Am.Dec. 787, Hardy gave $500 to one O'Brien for the purpose of placing a bet on the result of an election. It was understood that it was Hardy's wager but to be made in O'Brien's name. O'Brien placed the money with a stakeholder and before the election attachments were issued against O'Brien and served on the stakeholder. After judgments had been rendered against O'Brien the justice of the peace, on proceedings supplemental to execution, ordered the stakeholder to pay sufficient of the funds in his hands to satisfy the judgments against O'Brien. Thereafter Hardy brought action against the stakeholder, Hunt, to recover his $500. The court held that plaintiff, Hardy, did not part with ownership of the money by allowing it to be used in the name of another, and that since it was Hardy's money it could not be reached by a garnishment on the judgments against O'Brien. The court suggested that the stakeholder should have protected himself by a bill of interpleader. In Security Trust & Savs. Bank v. Carlsen, 205 Cal. 309, 271 P. 100, 470, 60 A.L.R. 630, the court upheld the right of an escrow holder to avail itself of the provisions of section 386 of the Code of Civil Procedure and to relieve itself of responsibility by interpleading money which it held in escrow where a disagreement had arisen as to its ownership. The court held (page 316 of 205 Cal., page 103 of 271 P.) that the obligation of a stakeholder is to deliver property held by him to the party entitled thereto; that he is not obligated to settle any disagreement between conflicting parties but if he does so he acts at his peril and is responsible for damages if he delivers the property to one not legally entitled to it.

In the instant case it was not the function of the bank nor was it within its power to determine the ownership of the fund. It could have avoided responsibility by interpleading the money and allowing plaintiff and Cawog to litigate between themselves as to who should receive it. Instead of doing so it was decided the controversy ex parte without notice to plaintiff and it therefore must accept the consequences of its act.

Plaintiff's $800 Loan to Smith.

In the statement of facts we have referred to the visit of Smith and Cawog to plaintiff's home on Friday, July 20, 1945, when Smith requested a loan for the purpose of liquidating unpaid rent due to Cawog. Plaintiff testified that Cawog said that Smith owed the latter $800. Cawog testified that he said $1800 was due. Plaintiff testified that he asked Cawog if $800 would clear Smith and Cawog answered: ‘Yes, that's all right.’ Cawog did not deny having made the latter statement. There was other conversation about the amount and, reading the entire record, it is manifest that plaintiff was led by Smith and Cawog to believe that $800 would pay the entire indebtedness owing by Smith to Cawog. Plaintiff's check to Smith for $800 was endorsed by Smith and Cawog, and Cawog received the money. On the following Monday Cawog sued Smith alleging an indebtedness of $1,877.82 and eventually recovered judgment for $1,055.85. The conduct of the two men clearly indicates a preconceived fraudulent scheme to obtain $800 from plaintiff, to be followed by the suit of Cawog against Smith and the levying of an execution on plaintiff's money to satisfy the judgment.

The inference of fraudulent intent is borne out by the fact that Cawog had already sued Smith for approximately $1,800 (the action was then pending), and if at the time of the seconf trip to Oxnard Smith's indebtedness to Cawog amounted to $1,877, which was the amount sued for in the second action, there was not sufficient of plaintiff's money remaining on deposit to satisfy the indebtedness. After deducting the sum of $800, which Smith and Cawog induced plaintiff to advance, from the alleged indebtedness which Cawog claimed was owing by Smith, the amount left in the fund was more than sufficient to satisfy a judgment for the remainder. This was a clever, fraudulent design perpetrated by Smith and Cawog on plaintiff who became the victim of his friendship to Smith.

Cawog's testimony was contradictory, irreconcilable, unreasonable and unbelievable. Among his many conflicting statements he testified with reference to the $800: ‘He got in his pocket, and he show the money to me Q. When did he show you the money? A. He showed me the money in the King's house. Q. He showed you the money in King's house? A. And in office, too, in Wawona, yes.’ (The latter refers to the Wawona hotel in Los Angeles which was the subject of the sublease.) At another point he testified that plaintiff gave a check to Smith for $800 and that Smith immediately handed it to Cawog. The evidence is conclusive that the check was written by plaintiff in his home in Oxnard, endorsed by Smith and delivered to Cawog in plaintiff's presence, and cashed by Cawog on the same day. Plaintiff was never in the Wawona hotel.

On this appeal Cawog has not answered any of the points made against him by plaintiff. Since plaintiff never asserted that the bank was liable for any part of the $800 fund no reference is made to it in the bank's argument. The brief filed by Cawog merely adopts the bank's brief as his. Inasmuch as he advances no grounds on which the judgment may be sustained, we are justified in assuming that the argument made for reversal is meritorious and that he has abandoned any attempt to support the judgment. Bendlage v. Kohlsaat, 54 Cal.App.2d 136, 140, 128 P.2d 691; Zeigler v. Bonnell, 52 Cal.App.2d 217, 218, 126 P.2d 118; Duisenberg-Wichman & Co. v. Johnson, 123 Cal.App. 125, 128, 10 P.2d 1010.

Since Cawog and Smith jointly participated in the fraudulent plot that resulted in procuring the sum of $800 from plaintiff on the false representation that that amount would clear Smith's indebtedness, both are liable for its return to plaintiff and judgment should have been rendered against them therefor. Their evil intent to mulct plaintiff is evidenced by the facts hereinbefore related (1) with reference to the two actions brought by Cawog against Smith of which plaintiff had no notice in which judgments were obtained and in one of which an execution was levied on plaintiff's money on deposit in the bank as a guarantee, and (2) with reference to the two subleases—one placed in escrow calling for the rental of $600 represented jointly by Smith and Cawog to plaintiff as being the total of Smith's obligation, the other secretly agreed upon before their first visit to plaintiff's home for a larger amount not disclosed to plaintiff or to the escrow holder, the latter document having been signed in Los Angeles after the escrow had been made at the bank.

Since there is no substantial evidence to sustain the findings hereby ordered to be amended and there is no conflict of the evidence on the subjects of such findings, a new trial is unnecessary and the order to amend the findings and to enter a judgment in accord therewith is made to the end that the litigation may be terminated without further proceedings in the court below.

The judgment is reversed with the following directions:

1. To amend the findings of fact as follows: (a) In each of Findings II, III, V, IX, XI and XIV strike out ‘untrue’ and insert in lieu thereof ‘true.’ (b) Strike from each of Findings III, IV, VI and XIII the words beginning with and following the word ‘excepting.’ (c) Strike out all that part of Finding V beginning with and following the words ‘The court finds.’

2. To add three findings of fact reading as follows: (a) ‘XXXVI. Charles H. King, who is plaintiff in action No. 519194, entitled Charles H. King v. J. S. Smith, et al., is not named as a party in the complaint in action No. 505712, entitled John Cawog v. J. S. Smith, nor in the complaint in intervention of Emma C. Arenz filed therein. These findings relate separately and respectively to both of said actions. Wherever a finding of fact in reference to the allegations contained in the complaint in the case entitled Cawog v. Smith, No. 505712, or in reference to the allegations contained in the complaint in intervention of Arenz therein, is in conflict with any finding of fact in reference to the action entitled King v. Smith, No. 519194, such finding shall not be deemed to be applicable to the last named action nor to modify or affect any finding in reference thereto.’ (b) ‘XXXVII. All allegations in the answer and in the cross-complaint of defendant Bank of America National Trust and Savings Association in denial of or inconsistent with the allegations in the complaint of Charles S. King in action No. 519194 or inconsistent with the findings of fact herein made are untrue.’ (c) ‘XXXVIII. That defendant Bank of America National Trust and Savings Association has performed additional and extraordinary services and has incurred expenses in connection with the escrow for which it should be reimbursed by defendants J. S. Smith and John Cawog but should not be reimbursed out of the funds of plaintiff King; that said bank is not entitled to compensation or reimbursement from said King or out of the funds deposited in said escrow; that $250 is a reasonable sum to be allowed said bank for its services to be paid by defendants Smith and Cawog but not by plaintiff.’

3. To amend the conclusions of law as follows: (a) Strike out paragraph I and insert in lieu thereof the following: ‘That plaintiff Charles H. King is entitled to judgment herein against defendants J. S. Smith and Bank of America National Trust and Savings Association in the sum of $3,000.’ (b) Amend paragraph II by striking therefrom the following: ‘and is entitled to have said judgment satisfied out of said funds on deopsit with said Bank of America.’ (c) Amend paragraph III by inserting after the word ‘judgment’ the words and letters ‘against defendants J. S. Smith and John Cawog’ and by striking out the words ‘and for the payment of said sum out of moneys remaining in its hands under the deposit referred to in the findings of fact herein.’ (d) Add paragraph ‘V’ readings as follows: ‘That plaintiff Charles H. King is entitled to judgment against defendants J. S. Smith and John Cawog in the sum of $800, with interest thereon from July 20, 1945, said amount being in addition to and not included in the sum of $3,000 mentioned in paragraph I of these conclusions of law.’

4. To amend the judgment as follows: (a) Strike out paragraph ‘First’ and insert in lieu thereof: ‘That said plaintiff Charles S. King have and recover from defendants J. S. Smith and Bank of America National Trust and Savings Association the sum of $3,000.’ (b) Strike from paragraph ‘Second’ the following: ‘and have said judgment satisfied out of said funds on deposit with said Bank of America.’ (c) Amend paragraph ‘Third’ by inserting after the word ‘judgment’ the words and letters ‘against defendants J. S. Smith and John Cawog’ and by striking out the words ‘and for the payment of said sum out of moneys remaining in its hands under the deposit referred to in the Findings of Fact herein.’ (d) Add paragraph ‘Fifth’ reading as follows: ‘That said plaintiff Charles S. King have and recover from defendants J. S. Smith and John Cawog the sum of $800, with interest thereon from July 20, 1945, said amount being in addition to and not included in the sum of $3,000 mentioned in paragraph ‘First’ of this judgment.'

WILSON, Justice.

MOORE, P. J., concurs. McCOMB, J., deeming himself disqualified, did not participate in the foregoing opinion.

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