Sharpstein v. Friedlander , 54 Cal. 58 ( 1879 )

By the Court:

The contract on the part of Friedlander was to pay to the plaintiff one-half of any sum he might receive from Sheehv on the notes, or on either of them. Friedlander never did in his lifetime receive from Shcehy any sum on the notes, or on either of them. There was therefore no cause of action against Fried-lander in his lifetime, in favor of the plaintiff, by reason of the agreement set forth in the complaint. It is true that Fried-lander had, before his death, transferred one of the notes for value to the Nevada Bank, but he presumptively remained liable to the bank as indorser of the note, in the event that Shcehy, the maker, failed to pay it; and until this payment by the maker had occurred, Friedlander could not be said to have absolutely, or within the intent of the agreement between himself and the plaintiff, received any sum upon the notes thus transferred. If, immediately upon the transfer being made, the plaintiff here had commenced an action to recover of Fried-lander one-half of the amount of the note transferred, the answer of Friedlander would have been that Sheehy, the maker, had not paid the amount of the note, or any part of it; and if told that he (Friedlander) had realized the amount of the note by its transfer for value, he might have replied that he was himself still liable to the bank as indorser, and in the event of the maker failing to pay, might be compelled, as indorser, to refund to the bank whatever value he had received by reason of the transfer of the note. In fact, we regard the transfer of the note to the bank, up to the time when Sheehy actually paid the note, as amounting to nothing more, in its legal effect upon the rights of the plaintiff and Friedlander, than a deposit of the note by the latter, as collateral security for a loan effected by him of the bank, would have done.

It was only, therefore, after the note had been actually paid by the maker, that the plaintiff’s right under the contract with Friedlander became capable of assertion—regarding the two notes as two separate funds. He might then have claimed against Friedlander, had he been living, the one-half of the proceeds of the note which had been paid; and Friedlander in the meantime having departed this life, it would have been necessary, in order to beep his claim to the one-half on foot, to present the claim to the executrix for allowance or rejection, according to the provisions of the statute regulating the enforcement of claims against the estate of decedents.

But we think that the plaintiff had also another and independent remedy, through which his admitted rights could be enforced. Had Friedlander, in his lifetime, received the entire proceeds of the first note, and appropriated them to his own use— or, what is the same thing, failed to ¡Day to the plaintiff his share thereof—the latter might have elected to claim for himself the second note in its entirety. We regard the two notes of $5,000 each, held by Friedlander on joint account for himself and plaintiff, as constituting for this purpose an entire fund of $10,000, to be equally divided between the parties. For this purpose they may be considered as money, instead of mere securities for money. If both* notes had been in fact paid, and Friedlander had -thereupon appropriated to himself one-half of the entire amount, the right of the plaintiff to the other half would have been indisputable. The entirety of the fund is not affected by the payment by the maker of one of the two notes which originally constituted the fund, and we cannot see upon what principle the right of the plaintiff to elect tb take the other and unpaid note as his share of the fund is affected by such payment.

The judgment is therefore reversed and the cause remanded, with directions to the court below to overrule the demurrer to the complaint. Remittitur forthwith.

Mr. Justice McKjxs.trY did not express an opinion in this case.