
    194 F. 753
    COOK v. ROBINSON et al.
    No. 2,012.
    Circuit Court of Appeals, Ninth Circuit.
    March 18, 1912.
    
      Stevens, Roth & Dignan, Metson, Drew & Mackenzie, and E. H. Ryan, for plaintiff in error.
    .Fmk & White, for defendants in error.
    Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.
   WOLVERTON, District Judge

(after stating the facts as above).

The first contention of plaintiff is that the garnishee’s motion to dismiss the proceedings upon which the judgment is based at the close of plaintiff’s case was tantamount to a motion for a directed verdict, and, the garnishee not having rested its case, the motion should have been denied. The action of the District Court is fully sustained by the case of Bunt v. Sierra Butte Gold Mining Co., 138 U.S. 483, 11 S.Ct. 464, 34 L.Ed. 1031, which was an action to recover for personal injuries. There the defendant moved at the close of the plaintiff’s case for a directed verdict in its favor, which was granted, and the judgment was affirmed, it being expressly declared that the court rightly directed a verdict for the defendant.

The next contention is that the garnishee having tendered the issue nulla bona, without having pleaded matter in avoidance, it will not be heard to set up the right of the Howards to the proceeds of the gold dust, the subject of the controversy. This contention proceeds upon the hypothesis that Robinson first sold the gold dust to the bank, and that the bank received the proceeds to the credit of Robinson, and that thereafter, if the Howards acquired any interest therein whatever, Robinson transferred such proceeds to them, and that the garnishee cannot avail itself of the fact of such transfer without pleading it. A sufficient answer to this is, if the judgment is to stand, that plaintiff proved defendant’s case, and from the showing made he was not entitled to recover as against the garnishee. The plaintiff could not have been misled by the answer for the garnishee’s answer to the interrogatories propounded by plaintiff set forth the real transaction.

The third contention relates to the findings of the court. The case having been tried without the intervention of a jury, the court’s findings are conclusive of the questions of fact, unless it be that there is no evidence to support them. The rule is that the findings of fact of the court, whether special or general, will not be disturbed if there is any evidence upon which such findings could be made. Stanley v. Supervisors of Albany, 121 U.S. 535, 547, 7 S.Ct. 1234, 30 L.Ed. 1000; Hathaway v. First National Bank, 134 U.S. 494, 10 S.Ct. 608, 33 L.Ed. 1004; Lehnen v. Dickson, 148 U.S. 71, 73, 13 S.Ct. 481, 37 L.Ed. 373; and Dooley v. Pease, 180 U.S. 126, 131, 21 S.Ct. 329, 45 L.Ed. 457. It is not contended that the conclusions of law should have been different upon the facts found, but that the facts found are not supported by the evidence.

The proposition that there was first a sale of the gold dust by Robinson to the bank does not seem to us to affect the case vitally. Robinson had been accustomed to take his dust to the bank, and through an understanding between the parties the bank took the dust, and, when weighed, allowed Robinson $17.60 per ounce for it, and credit was given as if Robinson had deposited so much money with the bank. So that under the usual way when Robinson took the dust to the bank he would have received credit for it as cash deposited. There is no evidence in the case tending to show that the gold dust in question was to be treated differently than had been usual theretofore, and we may assume for the purposes of this case that, when the dust was delivered to the manager of the bank by Robinson, a sale took place, leaving only the value to be determined by weighing, that there was a conversion of the gold dust into money, and that henceforth the parties were dealing with the money, and not the dust. Even upon this premise the real question for consideration is, What did Robinson do with the money? Did he deposit it to his own credit, or did he deposit it to the credit of the Howards to apply to the payment of his indebtedness to them? It is strongly urged that the transaction — that is, what was done — did not amount to an appropriation of the money to the payment of Robinson’s indebtedness to the Howards, but was only a deposit with instructions to the bank to make the payments through the issuance of the certificates of deposit, that, therefore, the proposed payments on the part of Robinson to the Howards were yet incomplete, and for what was to be done in the way of issuing the certificates the bank was constituted the agent of Robinson and not of the Howards, and that until the certificates were issued and accepted by the Howards the money remained the property of Robinson, subject to garnishment in the hands of the bank by plaintiff.

It is a principle of law perhaps beyond controversy that “where money is paid by A., into the hands of B., to remain at the disposal of C, the right to that money continues in A. until B. gives and C. takes credit for it, or B. actually pays it to C. Up to this period, B. is the agent of A. only, and A. may countermand the authority to make the payment.” Trustees of Howard College v. Pace, 15 Ga. 486. In support of the principle the court quotes from Addison on Contracts, as follows: “But in all cases where money is sent to one person, to be paid by him to another, to enable the person who is the object of the remittance, to maintain an action against the remittee, to recover the amount transmitted to him, there must be an express promise or assent, on the part of the latter, to pay over the money to the former, or hold it to his use, inasmuch as the mandate is revocable, so long as no such assent, promise, or engagement has been given or entered into” — citing authorities.

Thereupon the court further observes that: “When, however, the assent has been given, and the attornment made, the order to pay the money, if founded on a precedent debt or other good consideration, becomes irrevocable.”

So in a later case in the same court it is held that: “When A. deposits money in a bank, with directions that it is to be paid out to a check which he has given, or will give to C., the money is still the money of A. until the bank either pays it, or promises C. to pay it, or unless it be deposited at the instance or procurement of C., or under an arrangement with him.” Mayer & Lowenstein v. Chattahoochee National Bank, 51 Ga. 325.

The court then proceeds to the exceptions to the rule, about which it says: “The exceptions to the rule are special cases, as where the person to whom the money is ordered to be paid is interested in the consideration, or has himself procured, or directed, or agreed, that the deposit shall be made for his benefit. In such cases the depositor may be considered only as the agent of the party at interest in making the deposit and in contracting with the bailee for its delivery or payment to the true owner or beneficiary, and he, the depositor, loses control over it immediately on the deposit. In fact, it is not his deposit at all, but left for the true owner as agent.”

The principle is reaffirmed in Bluthenthal et al. v. Silverman, 113 Ga. 102, 38 S.E. 344. See, also, Kelly v. Roberts, 40 N.Y. 432; Peak v. Ellicott, 30 Kan. 156, 1 P. 499, 46 Am.Rep. 90; Brockmeyer v. Washington National Bank, 40 Kan. 376, 19 P. 855; Simonton v. First National Bank of Minneapolis, 24 Minn. 216; and Witter v. Little, 66 Iowa, 431, 23 N.W. 909.

These cases, however, do not seem to meet the conditions here present. The court has found in epitome that Robinson, having certain gold dust in his possession, notified the Howards to whom he was indebted that it was to be paid to them, and at the same time asked and received instructions from them to deposit the same in the Fairbanks Banking Company bank, and to accept certificates of deposit therefor in an amount to each of the Howards as designated; that Robinson delivered the gold dust to the cashier of the bank, had it weighed, and instructed the cashier that it was for Alice and L. G. Howard, and that certificates of deposit were to be issued to the said Howards in sums designated, and that thereafter, the next day, notice of garnishment was served upon the bank attaching Robinson’s property in the hands of the bank. These findings show that the Howards were not only not without notice of the intended deposit of the gold dust for their benefit, but that they had assented thereto by instructing Robinson that it be so deposited, and that he take certificates of deposit to be issued to them therefor. This brings the case directly within the exceptions to the rule as laid down in Mayer & Lowenstein v. Chattahoochee National Bank, supra. The Howards themselves agreed and directed that the deposit should be made for their bénefit. In such a case under the exceptions the depositor becomes the agent of the party for whose interest it is made, and he loses control over the deposit immediately it is made. When the deposit is made, the bank would thereupon become the agent of the party at interest. The dust had been deposited for the Howards, and the fact that the certificates of deposit were not issued to them at once did not change the relationship between them and the bank. The ownership of the dust or the money in its converted state immediately the deposit was made became the property of the Howards, and the bank’s further duty in issuing the certificates of deposit was to thé Howards, the same to be delivered to Robinson as their agent.

Now, as to whether there was any evidence to support the facts found by the court, Robinson says, in effect, that he owed the Howards for services, giving the amount approximately due to each; that when he left the creek— that is Dome Creek, where he was engaged in mining — he asked her, Mrs. Howard, for her signature, and how she wanted her money deposited, and stated that he was going to place this money to her credit; that she said all right, and further stated that she wa'nted it in the Fairbanks Banking Company’s bank, and a certificate of deposit for it, and then gave Robinson her signature to be handed to the bank. Jackson’s testimony is to the effect that Robinson delivered him the poke of gold and said that it was for the Howards, that he wanted it placed to their credit, and that the bank should issue certificates of deposit to them. The certificates were not then made out, but would have been if it had not been on Sunday, a nonbanking day. This is ample to support the findings of fact, at least as it pertained to Mrs. Howard.

As it relates to Howard, the garnishee in its answer to plaintiff’s interrogatory further states that: “Mr. Robinson stated at the time that he had told the Howards that he was going to deposit the money to their credit under certificates of deposit.”

This affords some evidence of Howard’s assent to the deposit of the gold dust in payment of the debt due him although by nature hearsay, and perhaps self-serving. But without this, Howard being a creditor and the deposit being made in payment of Robinson’s debt to Howard, the assent of Howard to the payment will be assumed.

It was said in Grove v. Brien, 8 How. 429, 439, 12 L.Ed. 1142, that: “In the absence of all evidence to the contrary in case of an absolute assignment by a debtor to his creditor for the purpose of securing a pre-existing debt, an assent will be presumed on account of the benefit that he is to derive from it.”

—citing in support thereof Tompkins v. Wheeler, 16 Pet. 106, 10 L.Ed. 903, and Brooks v. Marbury, 11 Wheat. 78, 6 L.Ed. 423.

The Tompkins Case was where the debtor made a deed of assignment for the benefit of a part of his creditors only, and the court held that the presumption of law was that the grantees accepted the deed; and the Brook Case was analogous and attended with a like holding. If this is true in case of an assignment to secure a debt, it must also be true in case of a payment of the debt to a third party for the benefit of the creditor.

These considerations lead to an affirmance of the judgment of the District Court, ánd it is so ordered.  