Bank of China v. Wells Fargo Bank & Union Trust Co. (Two Cases)

These appeals are from parts of two judgments, stated in a single document, in two actions in the district court. In each of these actions appellant sought and recovered from the appellee moneys deposited with it which it had refused to pay upon appellant’s demand. The judgment awarded costs and attorney’s fees to the appellee and denied any interest to the appellant on the moneys sued for. The facts in each case present the same questions of law and the two cases were consolidated for hearing both below and here. The two judgments in the single document were duly entered and appealed from.

The questions presented by these appeals are (1) whether the district court erred in denying the Bank any interest on moneys withheld by Wells Fargo after demands by the Bank, for the period prior to the Bank’s deposit of the money in court, during which time Wells Fargo retained the deposit with it for its own use; and (2) whether the district court erred in directing that out-of-pocket costs and attorney’s fees be paid out of a fund in the registry of the court as an item of costs.

' For several years prior to the institution of the first action (No. 13,412) on November 9, 1949, the…

209 F.2d 467 BANK OF CHINA v. WELLS FARGO BANK & UNION TRUST CO. (two cases). No. 13412. No. 13413. United States Court of Appeals, Ninth Circuit. December 21, 1953. COPYRIGHT MATERIAL OMITTED McCutchen, Thomas, Matthews, Griffiths & Greene, Morris M. Doyle, Owen Jameson, San Francisco, Cal., James B. Burke, Burke & Burke, New York, N. Y., for appellant. Lloyd W. Dinkelspiel, Martin Minney, Jr., Edward W. Rosston, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for appellee. Before DENMAN, Chief Judge, and McCORMICK and HARRIS, District Judges. DENMAN, Chief Judge. 1 These appeals are from parts of two judgments, stated in a single document, in two actions in the district court. In each of these actions appellant sought and recovered from the appellee moneys deposited with it which it had refused to pay upon appellant's demand. The judgment awarded costs and attorney's fees to the appellee and denied any interest to the appellant on the moneys sued for. The facts in each case present the same questions of law and the two cases were consolidated for hearing both below and here. The two judgments in the single document were duly entered and appealed from. 2…

(dissenting).

I cannot agree with the majority holding that the Wells Fargo be required to pay a substantial sum of interest to the Bank. The judgment of the trial court should be affirmed.

The allowance of interest is predicated upon the assertion that Wells Fargo “chose not to rely upon the protection offered by Section 953 of the California Financial Code.”

The record affirmatively shows that Wells Fargo did not have, nor could it exercise, a choice of either fact or lav/ at the time the demand was made upon it. The code section referred to obviously could not afford any claimed protection, for the reason that it was designed and clearly intended to cover acts and conduct of only an agent or authorized person, as distinguished from the primary authority of the principal. The section is thus restricted by its plain terms.

The cases which have construed this section are distinguishable. They deal with specific agents who have acted without authorization or beyond the scope of their authority. Under such circumstances it has been held that a *478 bank incurs no liability for honoring demands of previously authorized agents; nor need the bank inquire into the destination of…