Opinion
Department One
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.
COUNSEL
John J. Coffey, for Appellant, in pro. per .
W. H. Payson, for Respondent Quint.
R. H. Taylor, for Respondent Diemer.
JUDGES: Harrison, J. Paterson, J., and Garoutte, J., concurred.
OPINION
HARRISON, Judge
The evidence in this case fully sustains the finding of the court, that the assignment to the plaintiff by Corcoran of the claim against McCloskey was for the benefit of Corcoran's estate, and was never the property of the plaintiff. Corcoran, at the time of the assignment, was upon his death-bed, and died five days thereafter. The plaintiff was at that time, and had been for some years, his attorney and legal adviser. The only evidence in support of his ownership of the claim was given by himself: that, "prior to his death, he and I had an accounting of business transactions; he gave me this assignment offered in evidence."
In viewing the relations existing between plaintiff and Corcoran at the time of the assignment, and in the absence of any affirmative proof that Corcoran received any consideration therefor, the statements shown to have been made by the plaintiff subsequent to the death of Corcoran, that "the assignment was for the benefit of the estate of Mr. Corcoran," and "I have no claim against it; I don't own it, and I [28 P. 495] have no interest in it," and which he did not deny, -- justified the court in making the findings above named.
About three years prior to the death of Corcoran, certain of his personal property was attached in a suit by the Bank of California, and for the purpose of releasing the property McCloskey gave an undertaking to pay the judgment, and Corcoran, for the purpose of indemnifying him, transferred to him a claim which was the subject-matter of the claim assigned to the plaintiff. Upon this claim McCloskey, after Corcoran's death, collected certain moneys, and out of the same paid the judgment recovered by the bank, and the remainder to the administrator of Corcoran's estate.
Several months after Corcoran's death, the plaintiff assigned the claim to the defendant Diemer, and the court finds that at the time of such assignment he was indebted to Diemer in the sum of fifty dollars, and that the assignment was a security for said indebtedness. It does not appear that this indebtedness was ever paid. The plaintiff does not question the sufficiency of the evidence to sustain this finding, but claims that it is inconsistent with the finding that he was not the "owner" of the instrument. We see nothing inconsistent in the two findings. He could easily make an assignment as security for his own debt, of property of which he was not the owner, but which he merely held in trust for another.
The plaintiff, in his complaint, alleged that the defendants had collected the amount due on the assignment, and converted it to their own use. Not only was there no evidence of this, but McCloskey testified that he had paid all of the money to Mrs. Corcoran, and none to Diemer.
As we find no error in the record, the judgment and order denying a new trial are affirmed.