Borges

This is an appeal from a summary judgment entered pursuant to respondents’ motion therefor. The amended complaint is for damages inducing breach of contract. Depositions were taken and thereafter each side made a motion for summary judgment supported by affidavits, points *276 and authorities and the record. Appellant’s motion was denied. Respondents’ motion was granted.

Although there are some statements made by respective counsel which tend to indicate that the adversary litigants, when their respective motions came on for hearing, may have intended that the hearing of the contesting motions be considered as a submission of the ease on its merits, there is no stipulation to that effect, nor are there specific statements by counsel which would warrant this court in holding there was such a submission, especially, since the trial court rendered a summary judgment which specifically recited there was no triable issue.

We have been cited to no case and know of none which permits a reviewing court to treat two contesting motions for a summary judgment as a submission of the case to the court for a judgment on the record. We therefore test the validity of this judgment by the…

It appears to me Home owed no duty to Borges to recognize any lien for attorney’s fees until such time as he advised Home that he had a contractual lien. At no time did he do this. Consequently, Home had neither responsibility nor authority to pay out the insured’s moneys to Borges or anyone else, except as instructed by the insured, Harriet Burbank. (Ambrose v. McDonald, 53 Cal. 28 .)

On March 5 Home issued three drafts in accordance with instructions from Harriet Burbank, the insured. It still had no legal duty or authority to stop payment on these drafts on instructions of Borges. Instructions only came with Harriet Burbank’s letter, dated March 12, which gave authority to stop payment on the United States Treasury Department draft and issue a new one with different payees. If her *285 instructions were delivered to Home before March 16, the date on which the Treasury Department draft was presented for payment, a question of law and fact might possibly arise as to whether Home had breached any duty owed to Harriet Burbank of which Borges was a beneficiary. The record strongly suggests that Borges did not deliver the stop-payment authorization to Home before March 16, but there…

This is an appeal from a summary judgment entered pursuant to respondents' motion therefor. The amended complaint is for damages inducing breach of contract. Depositions were taken and thereafter each side made a motion for summary judgment supported by affidavits, points and authorities and the record. Appellant's motion was denied. Respondents' motion was granted.

Although there are some statements made by respective counsel which tend to indicate that the adversary litigants, when their respective motions came on for hearing, may have intended that the hearing of the contesting motions be considered as a submission of the case on its merits, there is no stipulation to that effect, nor are there specific statements by counsel which would warrant this court in holding there was such a submission, especially, since the trial court rendered a summary judgment which specifically recited there was no triable issue.

We have been cited to no case and know of none which permits a reviewing court to treat two contesting motions for a summary judgment as a submission of the case to the court for a judgment on the record. We therefore test the validity of this judgment by…