W. H. DAVIS, as Assignee of the Estate of Mary E. Pleasant, an Insolvent Debtor, Appellant, v. DONOHOE-KELLY BANKING COMPANY, Respondent, 152 Cal. 282

McFARLAND, J. This action was brought by the assignee in insolvency of Mary E. Pleasant to recover a certain tin box and its contents, or the value thereof, alleged to have been deposited by said Pleasant with defendant in the year 1898. The case was tried without a jury, and the court made findings and rendered judgment for defendant. From the judgment the plaintiff appeals. The appeal is upon the judgment-roll which consists of the pleadings, findings, and the judgment.

There is no bill of exceptions, and, of course, no question as to the sufficiency of the evidence to support the findings, or as to any error committed during the trial. The claim of appellant for reversal rests only upon the contention that the findings do not support the judgment, and that upon their face the judgment should have been for appellant. The material findings of the court are these: In the year 1896 the said insolvent Pleasant gave to the defendant at its banking house the tin box locked, upon which was painted in large letters the name “Teresa P.

Bell,” and on a wrapper inclosing the box was written “Not to be delivered to any one except Mrs. T. P. Bell or Mrs. M. E. Pleasant.” It contained jewels and precious stones to the value of fifteen thousand dollars. The defendant kept the box for about three years, no one during that period having demanded it; and on or about April 1, 1899, the said Teresa P. Bell demanded the box of the defendant and the latter then delivered it to said Mrs. Bell. At the time of the delivery of the box to the defendant by Mrs. Pleasant the latter was the servant and agent of Mrs. Bell, receiving from her a monthly salary.

She had no ownership of the box or its contents and acted merely as Mrs. Bell’s agent. Mrs. Bell was then and ever since has been the sole owner of said box and its contents. Upon the above facts, considered alone, it is obvious that Mrs. Bell had the right to demand the box, and that the defendant was perfectly justified in delivering it to her; and we do not think that certain other facts relied upon by appellant at all affect the obvious conclusion above stated. The other facts relied upon by appellant are these: On March 26, 1898, certain creditors 'of Mrs.

Pleasant filed in the proper court a petition in involuntary insolvency, praying that she be adjudicated an insolvent debtor; upon the filing of said petition the court made the usual order that she appear- and show cause, etc., and also prohibiting the payment of any debts or the transfer of any property by her. She appeared and- contested the insolvency proceedings, and after the contest she was duly adjudicated an insolvent, and on June 22, 1899, an assignee was elected and qualified and the clerk executed a written instrument assigning and conveying all of the insolvent’s property to the assignee.

On January 19, 1902, about three years after the delivery of the box by defendant to Mrs. Bell, the assignee demanded the same of defendant. At the time of the delivery of the box to Mrs. Bell the defendant had knowledge of the filing of said petition in insolvency. Upon the facts last above stated appellant contends that on the filing of the petition in insolvency the said box, as the property of the insolvent, went into the custody of the law;: that thereafter defendant had no right to deliver it to Mrs.

Bell, and that after the election of the assignee the said property went into the ownership of the assignee, who ever since has been entitled to recover it from defendant. But during that time the box was the property of Mrs. Bell, not the property of the insolvent, and the ownership of Mrs. Bell was not affected by the insolvency proceedings against Mrs. Pleasant. Appellant says the relation between Mrs.

Pleasant and the-defendant, respecting the box, was that of bailor and bailee, and invokes the general rule that a bailee cannot dispute the title of his bailor, and that therefore defendant cannot show who the real owner was. This general rule is not of universal application, and has its exceptions—even in the usual case where the contract of bailment arises out of the simple fact that the bailor has deposited the property with the bailee and there are no special circumstances or agreements which modify the presumption that the bailor is the owner. In the case at bar there are not only the facts that Mrs.

Pleasant was not the owner of the property, and that Mrs. Bell was such owner; there was on the property itself indicia of Mrs. Bell’s ownership, and an express direction that the box be delivered to her on her demand. Therefore, when Mrs. Bell demanded the property it was her right to receive it, and it was the duty of defendant to deliver it to her under the express terms of the contract upon which defendant received possession. To now compel defendant to pay to the assignee of Mrs.

Pleasant fifteen thousand dollars for property which she never owned, and which defendant had delivered to the true owner under the express provision of the contract upon which defendant had received it, would be a perversion of justice which could be warranted only by some inexorable technical rule which, in our opinion, is not presented in the case at bar. Appellant contends that there is no denial in the answer that Mrs. Pleasant was the owner of the property in question, or averment that Mrs. Bell was such owner. We do not think there is any merit in this contention.

It is true that some little confusion is created by the reference in the answer to more than one tin box deposited with defendant; but we think there is a clear denial of Mrs. Pleasant’s ownership and an averment of Mrs: Bell’s ownership of the particular tin box and its contents which are the subject of this action. The judgment appealed from is affirmed. Lorigan, J., and Henshaw, J., concurred.