Miles v. Bank of America National Trust & Savings Ass'n

This is an appeal from an order granting a new trial after a judgment of nonsuit. The action is one for damages for breach of contract. The contract relied upon consisted of a verbal promise made by the vendor of certain bonds that such bonds would be repurchased from the vendee at the original purchase price on demand of the buyer. Three bonds out of a total of eight were in fact repurchased, but the remaining five bonds, of the nominal or par value of $1,000 each, were not repurchased, on demand

“1. Insufficiency of the evidence to justify the granting of said motion for a non-suit and the rendering of a judgment of non-suit, and that the granting of said motion of non-suit and the rendering of said judgment thereon is against law.

“2. Errors in law, occurring at the trial and excepted to by plaintiff.

“Said motion will be based upon the minutes of the court, the court reporter’s stenographic report of said proceedings at said trial, and upon all of the papers, records and files in said action.”

The court then made the following order granting the motion for a new trial: “After consideration of the record, my notes of the testimony in this ease, and argument, it seems to me now that from the evidence, a prima facie case of ‘equitable estoppel’ was established by plaintiff as against the non-suit granted on the ground that the Statute of Limitations had run, and for that reason plaintiff’s motion for a new trial is hereby granted. ’ ’

Respondent contends that on appeal this court is restricted to consideration only of the single ground stated by the trial court in its order as the reason for granting a new trial, and that if the trial court was correct in granting a new trial upon that single ground, this court is foreclosed from considering the question of whether or not the nonsuit was properly granted on one or more of the other grounds urged by appellants in their motion for such nonsuit. With this.claim of respondent in the instant case we are not in

Respondent Joseph Miles, it appears, came to Los Angeles some time in 1928. Shortly after his arrival respondent went to the Bank of America and introduced himself to an officer of said bank, telling the latter that respondent had some money maturing in the middle west which he wanted to transfer to the local bank and deposit in a savings account. This being arranged, respondent some months later called at the bank to obtain the interest earned on his savings account. Respondent testified that on this occasion he again encountered an officer of the bank, to whom he said, “My money is maturing here and I have some interest due me.” Whereupon the bank official said, “Well, you can’t afford to keep your money in this savings, that amount of money. I will get you in touch with a representative of the bond department.” According to respondent, the bank’s officer introduced him to Mr. A. E. Nichols, as sales manager of the bond department, saying, “This man has a certain amount of money here and you take care of him, give him some sort of very good bonds that is all right.” Respondent purchased eight one-thousand-dollar bonds of Marblehead Land Company. Subsequently, respondent was invited to contact the bank with reference to these bonds, which he did, and after a conversation with Mr. Nichols respondent exchanged the Marblehead Land Company bonds for bonds of Pacific Coast Aggregates. On this occasion, respondent testified, Mr. Nichols said to him, “Any time you need money or any time you want to, just bring them in here to this bank and we will pay you the full amount that you paid for them, plus the interest, the full amount. ’ ’ About September, 1929, respondent decided to sell one of the bonds and returned to see Mr. Nichols, but the latter was out of the city, and respondent was directed to see a Mr. Smith at the Seventh and Figueroa Streets branch of Bank of America. Locating Smith occupying a desk at the Seventh and Figueroa Bank of America branch, respondent advised Smith of his desire to sell one of the bonds. Smith appeared reluctant to repurchase, but after respondent said to him, “When I bought the bonds they told me at the time they sold it to me that any time I need money, all I had to do, bring the bonds and

About August, 1930, according to respondent’s testimony, he again approached Mr. Nichols in the same office where he had originally purchased his bonds, telling Mr. Nichols that he needed some money and wanted to sell all of the remaining bonds. Respondent testified that Mr. Nichols said, “I don’t know that the bank could pay you the full amount, because bonds are going down”. To which, respondent testified, he replied, “That ain’t in accordance with the agreement that you—we had at the time you sold me these bonds; you told me any time you need money, why, you bring the bonds in and the bank will buy back from you for the full amount that you paid”. According to respondent, Mr. Nichols replied, “Well, yes, that is right, but conditions are different now, and everything is changed.” Respondent testified that after further conversation he finally said to Mr. Nichols, “Aren’t you in charge of the bank now, in the bond department?” To which Nichols replied, “Yes, but I couldn’t do the things like I used to; conditions are different, things are changed . . . but the bank will carry out the promise just like I told you at the time you bought them.” After further conversation along these lines, during which according to respondent, Mr. Nichols assured the former that the bonds were “gilt-edged”, and urged him not to dispose of them, respondent was persuaded not to cash them, and he went away. Again a few months later, according to respondent’s testimony, he contacted Mr. Nichols in an effort to dispose of the remaining bonds, but was unsuccessful in doing so. Along about September, 1931, respondent testified, he went to Mr. Nichols’ office again, but was unable to locate the latter. Respondent thereupon went downstairs into the Bank of America, and making known the purpose of his mission to a man sitting at a desk marked “Vice-President”,

“In referring to our records, we find that the America Investment Company, from whom the bonds were originally purchased, repurchased $1,000 par value at 99 on September 23, 1929. Subsequently, Bankamerica Company, successors to America Investment Company and National Bankitaly Company, repurchased $1,000 par value at 99 on September 1, 1931, and $1,000 par value at 99 on October 15, 1931. When the last two purchases were made at 99, the market on the bonds was 30 and 25 bid, respectively. You can therefore see, Mrs. Miles, that in repurchasing the above bonds, Bankamerica Company absorbed quite a loss in paying you your purchase price of 99.”

After discussing then existing economic conditions and their effect on the. market, the letter concludes: “We shall be pleased to keep your account before us and endeavor, when the opportunity presents itself, to work out some trade which will enable you to recover some of your loss. ’'

Again, under date of June 18, 1932, Mr. Giannini wrote respondent’s wife in part as follows: “Viewing your case from every angle we must reiterate that there are thousands of instances where investors have lost practically all their money due to unforeseen causes and have not received any reimbursement such as you have. We believe that we have done our part, inasmuch as we have sustained considerable loss in the purchase of the last 2,000 par value Pacific Coast Aggregate 6%% Bonds from Mr. Miles.”

Under date of December 2, 1932, W. F. McGrath, vice-president of Bankamerica Company at San Francisco, wrote respondent’s wife in part as follows: “As Mr. Giannini informed you in his letter dated June 18, 1932, we cannot be held responsible for investors who purchased securities through any of our affiliated companies, where the market on the bonds has depreciated to a point where they incur a loss.”

Respondent brought the action here in question on November 4, 1933, and at the time of the trial testified that the

Appellants first urge a reversal of the order on the ground that the action was clearly barred by the statute of limitations. Section 339 of the Code of Civil Procedure bars an action upon a contract not founded upon an instrument in writing in two years. Appellants contend there was a demand made to repurchase and a refusal so to do in August, 1930, and again in September, 1931. The facts of the instant case, however, impress us that the statute did not commence to run until March, 1932, when repurchase of the bonds was demanded and for the first time unequivocally refused. As to appellants’ contention that the demand to repurchase was not made within a reasonable time, it is sufficient to say that the question of what was a reasonable time for making a demand must depend upon the facts of each case and is primarily a question to be decided by the trial court. (Kaplan v. Reid Bros., Inc., 104 Cal. App. 268 , 272 [ 285 Pac. 868 ]; Johnston v. Keefer, 48 Idaho, 42 , 46, 47, [ 280 Pac. 324 , 325].)

Even though it be conceded that the statute of limitations commenced to run as contended for by appellants, we are nevertheless of the opinion that appellants were estopped by reason of their conduct toward respondent from taking advantage of the statute. As was said in Calistoga Nat. Bank v. Calistoga Vineyard, 7 Cal. App. (2d) 65 , 72 [ 46 Pac. (2d) 246 ]: “ ... it is a well-established rule of law that when the act or promise of one person causes another in reliance thereon to do or forbear from doing a thing to his detriment, which he would have otherwise performed, the promisor is estopped from taking advantage of the act or omission of the promisee. The violation of such a promise amounts to fraud and estops the promisor from repudiating the agreement on the doctrine of equitable estoppel.” In view of the foregoing evidence which we have set forth herein, we are of the opinion that appellants are estopped to set up the bar of the statute. Respondent was repeatedly assured that if he would be patient and wait, the bank would carry out its agreement. He was urged not to “start anything by going to any attorneys”; to “lay low and they would do just like they promised”. Acceptance by appel

“The prevailing rule is that the doctrine of equitable estoppel may in a proper case be invoked to prevent defendant from relying upon the statute of limitations, it being laid down as a general principle that, when a defendant electing to set up the statute of limitations has previously by deception or any violation of duty toward plaintiff, caused him to subject his claim to the statutory bar, he must be charged with having wrongfully obtained an advantage which the court will not allow him to hold. Thus defendant will be estopped to set up the statute of limitations in bar of plaintiff’s claim when the delay which would otherwise give operation to the statute has been induced by . . . inducing plaintiff to believe that an amicable adjustment of the claim will be made without suit, or by other forbearance- to sue induced by defendant, or by defendant’s husband as her agent.” (Italics ours.)

In the. instant case it appears to us that the delay about which the appellants now complain was induced by their own representations that they would make a voluntary adjustment with plaintiff. Where the delay in commencing action is induced by the conduct of the offending party it cannot be availed of by him as a defense. (Mitchell v. J. H. Roth & Co., 124 Cal. App. 96 , 99 [ 12 Pac. (2d) 91 ].) Nor is it necessary that the promisor shall sign a written agreement to waive the statute of limitations to bar him from subsequently repudiating his agreement. (Calistoga Nat. Bank v. Calistoga Vineyard, supra.) The authorities are uniform to the effect that the conduct of a promisor, or even his silence under certain circumstances, may result in an equitable estoppel. (Sec. 1962, subd. 3, Code Civ. Proc.; Verdugo Cañon Water Co. v. Verdugo, 152 Cal. 655 [ 93 Pac. 1021 ].) In the last-cited case it is said (p. 683) : “An estoppel may arise although there was no designed fraud on the part of the person sought to be estopped. . . . An estoppel may arise also from silence, as well as words. ’ ’ To create an equitable

The trial court therefore was correct in its conclusion on hearing the motion for a new trial that under the evidence in this case an equitable estoppel had arisen.

Appellants’ claim that they are not responsible for the promise to repurchase on any theory, whether of assumption of obligation by reason of corporate succession or upon the claim of the existence of an agency, actual or ostensible, is without merit. It would unduly prolong this opinion to here restate that portion of the evidence showing appellants’ responsibility. Suffice it to say, we have read the record and find therein ample evidence showing there was a consolidation of Bank of America with Commercial Bank as America Commercial Corporation, a holding company; that Bank of America was ultimately consolidated with Bank of Italy and operated as Bank of Italy; that thereafter Bank of Italy, a state bank, obtained a national charter, taking the name of Bank of Italy National Trust and Savings Association, which was subsequently changed to Bank of America National Trust and Savings Association,’ one of appellants herein. The evidence further shows that at the time the promise was made to respondent to repurchase his bonds Bank of America had an investment agency known as America Investment Company, which was owned by the stockholders of- Bank of America of California, and that Bankamerica Company, an appellant herein, was owned by the shareholders of Bank of America National Trust and Savings Association. In addition to the foregoing, we have the documentary evidence hereinabove set forth, tending very strongly, in our opinion, to establish a sufficient succession of interest by appellants herein to impress upon them responsibility to respondent. There is also abundant evidence, some of which we have herein outlined, to support both the actual and ostensible authority of Mr. Nichols to make the agreement with respondent, both on behalf of America Investment Company and appellant bank.

Appellants urge a reversal upon the ground that no liability could be imposed upon the appellant Bank of Amer

York, Acting P. J., and Doran, J., concurred.

A petition for a rehearing of this-cause was denied by the District Court of Appeal on December 7, 1936, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 4, 1937.