93 Cal. 283 | Cal. | 1892
The plaintiff deposited with the defendant, on the 3d of September, 1888, for safe-keeping, a certificate of deposit that had been issued to her own order. On the next day, an action was commenced by one Haviland, representing certain assigned claims (one of which was assigned by the defendant) against the firm of Bannister & Wetherly, and under a writ of attachment issued in said action a garnishment was served
At the trial, the plaintiff testified that the money represented by the certificate was a portion of the proceeds derived from the sale of the homestead of herself and her husband at Winnemucca, which she had negotiated and conveyed upon the consideration that she was to have the money for which it was sold with which to buy a less expensive home, and that after its sale her husband had given her the money, and that with it she had procured drafts upon San Francisco, for which the certificate of deposit was issued. The defendant offered evidence that the certificate had been attached as the property of the plaintiff's husband in the suit of Haviland against the firm of Bannister & Wetherly. The jury rendered a verdict in favor of the plaintiff, and from the judgment entered thereon, and an order denying a new trial, the defendant has appealed.
The claim on the part of the appellant, that the money represented by the certificate of deposit had been transferred to the plaintiff by her husband with intent to defraud his creditors, and being for that reason fraudulent and void, was subject to attachment at the instance of his creditors, cannot, under the issues presented by his
A bailee can assert a jus tertii in an action by the bailor only when he defends on such title, and by the authority of such third person. (Palmtag v. Doutrick, 59 Cal. 168; Dodge v. Meyer, 61 Cal. 423.) When the bailor has obtained the property by some fraud practiced upon the true owner, the bailee can, upon the authority of such true owner, or when he has been forbidden to make delivery of the property, defend upon such true owner's title; but he always assumes such defense at his peril, and takes upon himself the burden of showing the right to retain the property under such instructions.
In the present case, the appellant does not pretend that the husband has given him any authority to make the defense, but his claim to retain the certificate is based upon his other claim, that the money as well as the certificate was never given to the plaintiff, but was held by her for her husband as his agent, and that a garnishment therefor against the husband has been served upon him; and the only ground upon which, in his answer, he justified his refusal to deliver it to the plaintiff is, that ever since the fourth day of September, 1888, he has held, and does now hold, said certificate “ under and pursuant to said writ of attachment, and the said notice and command of said sheriff as aforesaid." Such right to hold the certificate depends entirely upon his ability to
Various exceptions were taken at the trial to the rulings of the court and its instructions to the jury, but an examination of the record shows that the court instructed the jury in accordance with the principles herein, and in its other rulings we are of the opinion that no error was committed which would justify a reversal of its judgment or order.
The judgment and order denying a new trial are affirmed.
Paterson, J., and Garoutte, J., concurred.