Segno v. Segno

LORIGAN, J. This action was originally brought by A. S. Hall as assignee of the substituted plaintiff, A. V. Segno, to recover on several promissory notes and for money loaned. The substituted plaintiff and defendant are husband and wife and the notes were executed by her in his favor and the money loaned by him to her. The defendant did not deny the execution of the notes or their validity, or the making of the loan, but set up a variety of other defenses against recovery upon any of them. The court made findings in favor of the plaintiff on all the notes and the loan sued on and against defendant upon all her defenses. On this appeal defendant questions only the validity of two of the findings in favor of plaintiff. The court found in his favor as to a loan of eight hundred dollars alleged to have been made to defendant on September 22, 1913. It appears that when this loan was made, and at the same time, defendant made a bill of sale in favor of plaintiff of certain personal property consisting of office furniture, books, and papers to secure its repayment, he agreeing to return or cancel the bill of sale on repayment *744 of the money within thirty days. Defendant claims the evidence shows that within the thirty days she tendered to plaintiff the sum of $805 in full payment of the indebtedness and demanded from him a delivery of the bill of sale which he refused; that this constituted a tender or offer of payment extinguishing the eight hundred dollars indebtedness and the court should have so found and held. The contention of the defendant is based on section 1500 of the Civil Code, which provides that “an obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor, with some bank of deposit within this state, of good repute, and notice thereof is given to the creditor.” But the trouble with this claim of defendant is that the evidence does not bring her within the terms of this section. She does not allege in her answer, nor does the evidence show, that she deposited in. the name of plaintiff in some bank of deposit in this state the amount due in satisfaction of the obligation. Defendant did take some measures respecting the payment of the loan and the return of her bill of sale, and doubtless left money with the Heilman Bank in Los Angeles, as she testified, for that purpose. So, too, the bank, by letter sent, notified plaintiff that it was holding “ [a specified sum of money] to take up a certain bill of sale, etc.,” stating that said sum was being “held” and “was to be paid” on compliance with certain conditions specified in the letter, which involved a surrender of the bill of sale. Plaintiff refused to call for the money or -to comply with the conditions. It is not pretended that defendant did anything more than have the bank so notify plaintiff. She did not deposit the money in the Heilman Bank, or any other bank, in the name of the plaintiff at any time. It is not clear that it was deposited with the Heilman Bank for any purpose, or if it was, that the bank held it in any other custody than as agent for the defendant to pay it over to the plaintiff on certain conditions. To effect the ex-tinguishment of an obligation under the section there must be a full compliance with the law. As there was no deposit of the money in the name of the plaintiff which the section requires, there could be no extinguishment of the obligation, and the court properly so held. “The deposit contemplated by section 1500 of the Civil Code, the effect of which is an extinguishment of the obligation, is an unconditional deposit *745 to the credit of the owner or holder of the obligation. . . . Money deposited under section 1509 of the Civil Code becomes at once the property of the person to whose credit it is placed. ’ ’ (Righetti v. Righetti, 5 Cal. App. 249, [90 Pac. 50].) Appellant complains because the court failed to give her credit as an offset for $2,459.74, the aggregate amount of twenty-nine notes for small sums given by plaintiff to third persons and taken up by defendant as they became due. There is no doubt but that plaintiff executed the notes, failed to pay them when due, and that they were presented to defendant, who settled with the holders of them. But all this was provided to be done by the defendant in a written contract between the parties. Defendant had agreed to give plaintiff a note for fifty thousand dollars, secured by mortgage, which she did. This note and mortgage represented the purchasing price of a publishing business sold by plaintiff to defendant, and these outstanding twenty-nine notes represented obligations of the plaintiff theretofore given by him to the owners of stock in said publishing company for the purchase price thereof. Contemporaneously with the giving of this note and mortgage a written contract relative to these outstanding notes was made by the parties whereby it was declared that the note and mortgage were given in part to secure payment of said outstanding notes of the plaintiff, the agreement providing that plaintiff should pay them, and that if he did not, then that defendant might pay them, “which payments shall be considered to be and shall be payments upon the note heretofore given” by defendant to plaintiff “for said sum of fifty thousand dollars.” Plaintiff being out of the state, defendant took up these notes as they became due and long prior to the commencement of this action. Her claim on the trial was that she had not in fact paid them but had merely purchased them from the holders to assert as a setoff against plaintiff. There is nothing in this claim. While the defendant was not required to pay these notes at all unless she chose to do so, she did pay them, and did so in harmony with the terms of her contract, and they constituted partial payments on her fifty thousand dollar note to plaintiff. The effort now to assert their setoff to the notes in suit here only occurred to the defendant after the bringing of the present action. *746 These are the only points made in the brief of appellant, and as they are entirely without merit, the judgment appealed from is affirmed. Melvin, J., and Henshaw, J., concurred.