Kunz v. Anglo & London Paris National Bank

Respondent’s intestate deposited in escrow with the Anglo and London Paris National Bank of San Francisco a deed covering certain mining claims, with instructions to deliver the same to one H. W. Wernse, the grantee named therein, upon the payment by him of $2,500 within a specified period; otherwise the deed to be returned to the depositor. Within the time prescribed in the escrow instructions, but subsequent to Lee’s death, Wernse paid $2,500 to the bank and received the deed. This action was thereupon brought by the respondent, as administrator of Lee’s estate, to recover the money. In its answer, the defendant bank averred that the plaintiff and the intervener had made inconsistent claims upon it for the fund, that it was ignorant of the merits of these respective claims, and prayed that upon depositing the money in court it be dismissed from the action and the adverse claimants made to interplead, all of which was done. Judgment was entered awarding the fund to the respondent, as administrator of Lee’s estate, whereupon the intervener prosecuted this appeal.

Appellant’s claim to the money is founded upon the following instrument executed and delivered to him by Lee:

“Bill of Sale.

“Know All Men By These Presents: That I, A. H. Lee, of Las Vegas, Clark County, Nevada, the party of the first part, for and in consideration of the sum of ten dollars lawful money of the United States to me in hand paid by Harry Blanding, of Las Vegas, Clark County, Nevada, the party of the second part, the receipt and adequacy whereof is hereby acknowledged, do by these presents, grant, bargain, sell, convey, and set over unto the said party of the

second part, and to his executors, administrators, heirs and assigns, all right, title, interest, and claim whatsoever, I am now possessed of or may hereafter acquire, in or to or under that certain escrow agreement made by and between A. H. Lee, and H. W. Wernse, and deposited with the Anglo and London Paris National Bank of San Francisco, California, with escrow instructions dated April 26, 1926.

“And I hereby nominate, constitute and appoint the said Harry Blanding, my attorney in fact, irrevocable, for me and in my name and place and for my use and benefit, to demand, sue for, collect, and receive all such sums of money or demands whatsoever, as are now or shall hereafter become due, owing, payable or belonging to me, under or in anywise arising from or out of the above mentioned escrow, or the agreement or deed or papers deposited therewith, and with full authority to the said Harry Blanding to make any and all compromises or agreements connected therewith as he shall deem wise or necessary, and to, in my name execute any and all discharges therefor as may be wise or necessary.

“Giving unto my said attorney full power to perform every act and thing which he may deem wise or necessary to be done in or about the premises, in my name and stead, as fully to all intents and purposes as I might or could do if personally present, I hereby ratifying and confirming all that my said attorney in fact, the said Harry Blanding, shall lawfully do or cause to be done by virtue of these presents.

“In witness whereof, I have hereunto set my hand and seal the 24th day of May, 1926.

“(Seal and Acknowledgment.) A. H. Lee.”

The appellant contends that this so-called “Bill of Sale” created an irrevocable agency or power coupled with an interest which survived Lee’s death, thus entitling him to the escrow fund. The leading case on the subject is Hunt v. Rousmaniere, 8 Wheat. (U. S.) 174, 204 [ 5 L. Ed. 589 ], wherein Mr. Chief Justice Marshall declared: “We hold it to be clear that the interest which can protect a power after the death of a person who creates it must be an interest in the thing itself. The words themselves would seem to import this meaning. ‘A power coupled with an interest ’ is a power which accompanies or is connected

Even a most cursory reading of the above-quoted “Bill of Sale” discloses that the appellant is not thereby invested with any beneficial interest or estate in the escrow fund now claimed by him. By its very terms the instrument appoints and designates the appellant as Lee’s agent or attorney-in-fact solely for the purpose of collecting and holding the escrow fund for Lee’s “use and benefit”. The latter’s demise revoked and canceled this unexecuted naked power or agency and terminated any and all rights of the appellant thereunder. (Sec. 2356, Civ. Code; 1 Cal. Jur. 703, sec. 12.)

An instrument bearing a marked similarity to the one under which the appellant here makes claim was before this court for construction in the case of Todd v. Superior Court, 181 Cal. 406 [ 7 A. L. R 938 , 184 Pac. 684 ], In that case the principal,- for a named consideration, had purported to transfer and assign to an attorney-in-fact all 'of her right, title and interest in and to certain legacies, the instrument expressly stating that it was to be “construed as a power of attorney, coupled with an interest in the subject matter thereof”. However, at the conclusion of the instrument the following appeared: “After deducting the interest herein assigned, and his expenses and outlays in and about performing his duties, said attorney-in-fact shall remit the balance of the funds on hand to me through his corresponding bank.” After stating that this court was not bound by the parties’ designation of the power as one “coupled with an interest”, the court in that case construed the instrument as a whole, and declared that the chief and predominating purpose of the constituents

This language fits the present case exactly, for while the first paragraph of the instrument under which the appellant makes claim purports to assign the escrow fund to him, a reading of the entire instrument clearly discloses that th¿ assignment was made solely for the purpose of facilitating the collection of the fund which the appellant was to hold in trust for the “use and benefit” of respondent’s intestate. Appellant’s attempted distinction of the instrument involved in the Todd case, supra, from that involved in the case at bar, upon the ground that the former expressly provided for the accounting or paying over of the fund by the attorney-in-fact to the principal, is clearly without merit. The instrument in the present case, as already indicated, expressly provides that the escrow fund is to be collected and received by the appellant for the “use and benefit” of the respondent’s intestate. Language more definitely requiring the appellant to account for and pay over any funds coming to him under the instrument cannot be phrased.

Upon several occasions during the trial the appellant sought to prove by parol evidence that the so-called “Bill of Sale” running in his favor, rather than being a mere assignment for purposes of collection, as the instrument in so many words provides, was in fact intended by respondent’s intestate to be absolute in form and effect, and to be in partial satisfaction and discharge of an indebtedness then asserted to be owing by respondent’s intestate to the appellant. In other words, the appellant attempted to show by

In line with the trial court’s rulings, it is our conclusion, therefore, that the intention of the parties to the “Bill of Sale” is clearly disclosed by the writing, the instrument being susceptible of but one construction, viz., that it created a bare power of attorney or agency for collection of the escrow fund, which power or agency terminated with the death of the principal. It follows, therefore, that the evidence was properly excluded.

At or about the time of the execution and delivery of the instrument by which appellant was appointed the attorney-in-fact of respondent’s intestate to collect the escrow fund for the latter’s benefit, there was also executed and delivered by said intestate a deed, introduced in evidence by the appellant, purporting to convey to appellant the several mining claims covered by the deed theretofore placed in escrow and running in favor of Wernse. Appellant’s deed being subsequent in point of time to the escrow deed, of which escrow deed the appellant had knowledge, was, of course, subject and subordinate to the Wernse deed. Though mentioned, this fact is not of particular moment here, in view of subsequent developments, for Wernse, the escrow grantee, fully complied with the escrow instructions, and took title to the mining claims. Appellant’s deed, being

However, even if the deed were to be read and construed with the instrument appointing appellant as attorney-in-fact for the collection of the escrow fund, we would be required, so far as possible, to give effect to the terms of each instrument, so as to effectuate the expressed intention of the parties. (Sec. 1641, Civ. Code.) This being so,

What we have said sufficiently disposes of appellant’s contentions. Examination of the entire record satisfies us that the findings, which are' sufficiently full and complete, are amply supported by the evidence, and warrant the judgment entered.

The judgment is affirmed.

Curtis, J., Preston, J., Seawell, J., Richards, J., Shenb, J., and Langdon, J., concurred.