50 Cal. 207 | Cal. | 1875
The contract recited that Stidger was willing that Bohrle should receive the benefit of any surplus which the notes and mortgage might yield over and above the amount sufficient to reimburse Stidger for moneys advanced for Bohrle. This amounts to a stipulation that the surplus should go to the benefit of Bohrle. By another clause of the contract the right of the creditors of Bohrle to attach the surplus in the hands of Stidger, is recognized in terms—that, in case of a retransfer to Bohrle ‘ ‘ Stidger shall be protected against any attachments or garnishments that have been or may he made upon or against said notes and mortgage,” etc. "We think that the transfer by Bohrle to Stidger must be held to have been intended by the parties not as absolute in its character, but by way of security merely.
Judgment reversed, and cause remanded for a new trial.
