Sharon v. Nunan

63 Cal. 234 | Cal. | 1883

Ross, J.

We see no merit in the appeal. Beyond question, the money sued for was the property of the plaintiff. It was in the possession of one Little, an employee of plaintiff, to be used by him in paying certain of plaintiff’s taxes. The money was in gold and silver coins, sealed up in a canvas bag, marked with a tag, on which was written Little’s name, and deposited in one of the vaults of the Safe Deposit Company, in the city and county of San Francisco. It was in this condition when it was seized by the defendant as the property of Little, under and by virtue of an execution against him. For the defendant, who is the appellant here, it is contended that replevin is not a proper remedy for the recovery of money thus situated. The authorities aro clear that it is. (3 Blackst. Com. 151; Skidmore v. Taylor, 29 Cal. 619; Griffith v. Bogardus, 15 Cal. 410.)

Eext it is said that demand on defendant for the money was necessary before plaintiff could maintain the action, and that there was no demand made. As no demand was necessary, we find it unnecessary to decide whether the demand proved was or was not a sufficient demand. (Boulware v. Craddock, 30 Cal. 190; Wellman v. English, 38 Cal, 583.)

"We do not perceive the relevancy to the case before the court of the question of Lobinsón’s authority to draw the check in plaintiff’s name, on which Little drew the money from the Bank of California. The bank did not question the authority, but paid the money. The money was the plaintiff’s, and that was the important question, aside from those already disposed of.

Judgment and order affirmed.

McKinstry, J., and McKee, J., concurred.