Wheat v. Bank of California

GAROUTTE, J. Jones brought an action against Richter, alleging a partnership in the business of selling street railway cables, and asked for the appointment of a receiver, an accounting, and a decree of dissolution. Subsequently Seale intervened, setting out that he was a partner of Richter in the business of selling cables, and that Jones was not. He also asked for an accounting and a dissolution of the partnership. Upon the aforesaid application of Jones one Bisbee was appointed receiver by the judge, “to collect, .... the outstanding debts and moneys due, or to become due, on account of the partnership alleged in the complaint herein to exist between plaintiff and defendant,” and to receive and take possession of all the property of said partnership upon filing a bond, etc. Soon after the intervention of Seale there came into the possession of the Bank of California about two thousand six hundred dollars, the net proceeds of the sales of two cables. This money was held under a certificate of deposit made out in favor of Thomas Brown, cashier. Bisbee, the receiver, notified the bank of his appointment. [6] Scale and liis attorney notified the bank that, he, Seale, was a partner with Richter in the business of selling cables, and that he had filed a complaint in intervention in the litigation between Jones and Richter, and instructed Brown, the cashier of the bank, not to pay out the money held by the bank until the final result of the litigation was declared. It is now claimed by Seale and his attorney that Brown so agreed to do. Thereafter Bisbee, the assignee, died, and Wheat, the present plaintiff, was appointed in his stead, “with the same powers conferred on his predecessor.” Ponding the application for the appointment of Wheat, •Jones and Richter, in company with their attorneys, presented themselves to the Bank of California, and'upon representing that their differences had been settled, the certificate of deposit was turned over to them, and the proceeds divided. Wheat thereafter being appointed assignee, brought this action against the bank to recover the money represented by the certificate. Prior to tire commencement of the action the partnership litigation between J ones, Richter, and Seale had come to judgment, and by that judgment it was declared that Jones was not a partner with Richter in the cable business, but that Seale was such partner. There appears to be some evidence in the record appertaining to an injunction issued in an action entitled Bisbee v. Richter, but we attach no importance to it. Likewise we attach no importance to the promise made by Brown to Seale and his attorney (conceding there was such a promise), that he, Brown, would hold the money until the litigation was finally determined. There was no consideration for such a promise, and it had no binding force and effect. From the standpoint at which we view the case it is unnecessary to consider whether or not liabilities and rights were fixed by the notification given to Brown by Seale and his attorney, to the effect that Seale was a party to the litigation and claimed an interest in the fund. If Seale created rights in his behalf by the course adopted, they were rights purely personal to himself, and in no way affected the legal status existing between the receiver and the bank. Plaintiff Wheat, as receiver, now brings this action to recover from the bank the sum held by it as the net proceeds of certain cable sales. He is not authorized to bring the action; his powers [7] are not broad enough. Those powers are measured by the order of the judge appointing him receiver; and by that order he is only authorized to deal with the property of the partnership of J ones and Bichter. It is conceded by appellant that the property involved in this litigation was the property of the partnership of Bichter and Seale. The receiver, under the order appointing him, had no power to collect or sue for the property of that partnership, and necessarily must fail in this action for that reason. The complaint states that Bisbee was appointed receiver with power to receive, collect, take, and keep possession of all the property and assets of said partnership, “and especially of all the proceeds of the sales of said wire cables mentioned in said action This allegation was most material to the statement of a cause of action, and an absence of it would have been fatal to the sufficiency of the pleading. Yet plaintiff wholly failed at the trial to prove that the receiver had any power or control whatever over the proceeds of the sales of said cables. And the finding of the court as to that fact is directly opposed to this allegation of the complaint. It is further claimed by the appellant that many of the findings of the court are without support in the evidence. Let the claim be conceded, still the finding to which we have referred has support in the evidence, and that finding absolutely points the judgment against appellant, whatever may be the real facts as to other matters alleged in the complaint. For the foregoing reasons the judgment and order are affirmed. McFarland, J., and Van Fleet, J., concurred. Hearing in Bank denied. Beatty, C. J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 2nd of December, 1897: