Holzman

This appeal is by plaintiff from a judgment of dismissal.

FACTS

On August 24,1960, the California Commissioner of Corporations issued to Western-America Sports Enterprises, Inc., a corporation (Western), a permit to sell and issue its securities. In January 1961, the permit was amended to provide that all subscription money “shall” be paid to Western and that such money, less one-half of the allowed selling expenses, “shall immediately be delivered . . . and held as an escrow by” defendant-respondent United California Bank (Bank). These funds were to be held by Bank pending further order of the Commissioner of Corporations (Commissioner).

At the time of its selection as escrow holder, Bank was given a copy of the permit issued by Commissioner to Western together with a letter stating that Bank was to send the Division of Corporations a copy of all deposits showing the subscribers’ names and number of shares subscribed by each, the amount of money deposited in the escrow account, and the aggregate funds in the account.

This procedure was followed with respect to $163,035 of subscribers’ funds, $14,970.50 being deposited in Western’s regular checking account pursuant to…