GRESHAM v. NATIONAL CASUALTY CO (1938)

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

GRESHAM v. NATIONAL CASUALTY CO.

Civ. 11771

Decided: October 11, 1938

R.J. Gresham, in pro. per. Joe Crider, Jr., by A.F. Mack, Jr., both of Los Angeles, for respondent.

From a judgment in favor of defendant after trial before the court without a jury in an action to recover the penalty upon a bond given pursuant to a void ordinance plaintiff appeals.

The essential facts are:

November 1, 1935, a bond in the penal sum of $2,500 was executed pursuant to the provisions of ordinance 71485 of the city of Los Angeles by Universal Interstate Freight Lines as principal and defendant as surety, providing for the payment to the consignor by the principal, who was engaged in transporting freight for hire, of all moneys collected by it from a shipper's consignee within ten days after delivery of freight.

Universal Interstate Freight Lines collected on consignment deliveries the sum of $5,113.91, no part of which was remitted to its consignors. The carrier thereafter was declared a bankrupt.

These are the questions presented for determination:

First: Since Ordinance No. 71485 of the city of Los Angeles was void, was the bond upon which defendant was surety likewise void?

Second: Was defendant estopped from relying upon the invalidity of the bond which it had executed?

The first question must be answered in the affirmative. The law is established in California that a bond given pursuant to a void statute is itself void and unenforceable. Taylor v. Exnicious, 197 Cal. 443, 446, 241 P. 397; Shaughnessy v. American Surety Co., 138 Cal. 543, 545, 69 P. 250, 71 P. 701.

In the instant case Ordinance No. 71485 of the city of Los Angeles was held void April 13, 1935. People v. Sackett, 6 Cal.App.Supp.2d 763, 43 P.2d 1115. Therefore, applying the rule of law above stated, the bond given pursuant to the void statute was likewise void and unenforceable.

The second question must be answered in the negative. The law is settled that the doctrine of estoppel has no application where, as in the instant case, the instrument which is the subject of litigation is void from its inception. Colby v. Title Ins. & Trust Co., 160 Cal. 632, 644, 117 P. 913, 35 L.R.A., N.S., 813, Ann.Cas.1913A, 515; Silverthorne v. Percey, 120 Cal.App. 83, 85, 87, 7 P.2d 746.

For the foregoing reasons the judgment is affirmed.

McCOMB, Justice.

We concur: CRAIL, P.J.; WOOD, J.