& Hamlin piano, or its value, conceded to be [ daughter; and we think, too, that, while $1,200. The appeal is taken by the defendant from the judgment, and is before this court upon a statement of the case. In there was never any formal delivery to her We concur: LENNON, P. J.; RICH- ELSEA v. FASSLER. (29 Cal. A. 187) (Civ. 1433.) (District Court of Appeal, Third District, California. Dec. 16, 1915.) [1, 2] From the evidence it appears that at a time perhaps as far back as 20 years ago the defendant married the mother of Eloise Edwards, a widow, and in the year 1894, when Eloise was about 5 years old, Mrs. Edwards bought in her name a Knabe piano, which was paid for by the defendant. The piano was purchased to be used by Eloise, who, even at that early age, had shown considerable musical talent, and who later, and at the time this case was tried, was generally recognized as a talented musician. In the year 1911 Eloise and her mother entered into negotiations with the plaintiff for the purchase of a new piano, which negotiations culminated in a written contract between Eloise and the plaintiff, whereby the former agreed to purchase the piano in dispute in this action. The old piano was to be taken in part payment of the new one, the sum of $450 being credited therefor upon the price of the latter, and the balance of the purchase price was to be paid in monthly installments. January, 1912, Mrs. Edwards died, and the following year defendant and Eloise quarreled and became estranged. Prior to that time and since she was a little child Miss Edwards had lived with the defendant as his own daughter, being entirely dependent upon him for her support, and occupying as to him in every respect the position of daughter. All the monthly, payments on account of the new piano were made either by Eloise or her mother or by the defendant, but in every instance with money earned by the defendant. There is still due on account of the purchase price thereof a small amount. No default in payment, however, has been made and none is claimed. Prior to the commencement of the action Eloise assigned her interest in the piano to the plaintiff, and plaintiff's right to recover herein is based entirely upon Miss Edwards' right to the possession of the instrument as its owner. While too much stress must not be attached to the fact that this piano was purchased for the exclusive use of Miss Edwards, and was constantly referred to by the members of the family as her piano, it is of considerable significance when correlated with the other facts in the case that the contract for the purchase of the instrument was made in her name, and that it was delivered to her personally at the residence of her mother and stepfather. [Ed. Note. For other cases, see Brokers, All that was done with reference to the pur-Cent. Dig. § 68; Dec. Dig. 50.] chase of the first piano and with reference to Appeal from Superior Court, City and its exchange and the purchase of the second County of San Francisco; J. M. Seawell, one was with the knowledge and acquiescence Judge. of the defendant. 1. BROKERS 50-REAL ESTATE BROKERS— OPTION TO SELL-CONSTRUCTION. An option on lands to real estate brokers, providing that it should remain in full force for 90 days from date, and that, if the owner sold to any one, within 90 days after the expiration of the option, to whom the property had been recommended by the agents or their assigns, the owner would pay a commission of 5 per cent., limited to 90 days the time during a sale should exist. which the agents' authority to sell or negotiate [Ed. Note. For other cases, see Brokers, Cent. Dig. § 68; Dec. Dig. ~50.] 2. BROKERS 50-REAL ESTATE BROKERSOPTION TO SELL-CONSTRUCTION. real estate brokers, providing that it should reAn option given by the owner of lands to main in force for 90 days from date, and that, if the owner sold within 90 days from expiration of the option to one to whom the property was recommended by the agents, he would pay a commission of 5 per cent., was an agreement to pay the brokers a commission of 5 per cent. on the gross amount for which the owner, within 90 days from expiration of the option, might recommended it during the 90-day life of the opsell the property to one to whom the brokers had tion. Action by J. B. Elsea against Joseph FassWe think from the evidence in the case ler. From a judgment for defendant and an that it is clear that the defendant intended order denying his motion for new trial, plainto make a gift of the new piano to his step- tiff appeals. Judgment and order affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Albert H. Elliott, Guy C. Calden, and Clar-cated by its findings and the conclusion of ence E. Todd, all of San Francisco, for ap-law therefrom, is erroneous. pellant. John T. Carey, of San Francisco, for respondent. HART, J. This is an action to recover the sum of $3,100 alleged to be due the plaintiff as for a broker's commission on the exchange of real estate. Judgment passed in favor of the defendant, and the plaintiff prosecutes this appeal therefrom and from the order denying his motion for a new trial. The basis of this action is the following "option to sell" the property therein described: The court found that the agreement as pleaded was made and entered into between Fassler, owner of the property, and Chandler & Bourn; that the latter assigned the same or an interest therein to Elsea and Ware, and that finally the entire interest in the agreement was assigned to Ware; that on the 29th day of May, 1910, a contract was entered into between Fassler and Maxson whereby they agreed to exchange the properties above mentioned, and that they did subsequently make said exchange; that the said Chandler, Bourn, Elsea, and Ware "did not recommend the property of the defendant described in said contract to the said W. H. "San Francisco, Cal., Jan. 5th, 1910. Maxson prior to the expiration of 90 days "For and in consideration of the sum of one from and after the 5th day of January, 1910, dollar, the receipt of which is hereby acknowledged, I hereby give to Chandler & Bourn, of but did recommend said property to said W. this city, the exclusive right to sell for me at H. Maxson prior to May 27, 1910, and urged the net price of one hundred and eighteen and said property upon said W. H. Maxson, and 75/100 dollars ($118.75) the following describ-procured the said W. H. Maxson to enter in "Option to Sell. ed property, to wit: [Describing it.] "This option to remain in full force for a period of ninety (90) days from date hereof. I agree to grant all necessary time in which to examine the title to said property, and to give a good and sufficient deed free and clear of all incumbrance. I authorize said agents, or their assigns, to accept for me and in my name, a deposit on account of the sale of said property, and in the event of the title proving defective I agree that they are to return the said deposit, providing that the said defects cannot be cleared within sixty days after notice thereof to me in writing. If I sell to any one within ninety days after the expiration of this option to whom said property has been recommended by said agents or their assigns, I agree to pay them a commission of five (5) per cent. of the amount of said sale. "Said agents are hereby authorized to contract for me and in my name accordingly. "Witness my hand this 5th day of January, 1910. Jos. Fassler. "Witness: F. E. Ware." On the day upon which the foregoing instrument was executed Chandler & Bourn, to whom said option was given by the defendant, assigned a two-thirds interest in the said agreement to J. B. Elsea and F. E. Ware, who were copartners doing business under the firm name of the "Golden Gate Land Company." Neither Chandler & Bourn nor Elsea and Ware succeeded in selling or procuring a purchaser of the land described in said agreement during the life thereof. It appears, however, that after the expiration of the 90 days during which the option was to retain vitality and force Ware succeeded in interesting one Dr. Maxson in the property to which the said agreement related, with the final result that Fassler exchanged said property with said Maxson for an apartment house in the city of San Francisco. It is not claimed that the evidence does not support the findings, but the contention of the plaintiff is that he is entitled to judgment upon the findings as made by the court. This contention is founded upon the theory that the trial court's conception of the meaning to the said contract or agreement of exchange between said W. H. Maxson and said defendant, and recommended the property of said defendant to said W. H. Maxson, and urged said property of defendant upon said W. H. Maxson, and rendered services to said defendant in and about the procuring of the exchange of said properties." The court further found that the value of the apartment house for which Fassler exchanged the land described in the option agreement was at the time of said exchange the sum of $62,000 over and above a certain mortgage existing on said property in the sum of $45,000. As suggested, the controversy between the plaintiff and the defendant arises out of a difference of opinion as to the true meaning and scope of the option agreement. It is the position of the plaintiff that he is entitled, under the terms of the concluding covenant of said agreement, to a commission of 5 per cent. on the value, as found by the court, of the property for which Fassler exchanged the land referred to and described in said agreement. On the other hand, the defendant contends: (1) That the exchange of the properties did not constitute a sale within the meaning of the concluding covenant of the agreement; (2) that said part of the agreement contemplated and meant that the property should have been sold by Fassler to a party recommended by the plaintiff and his associates or some of them during the life of the option agreement. The court made no special finding upon the question whether the transaction involved a sale of the property, but adopted the construction put upon the contract by the defendant as to the time within which the plaintiff and copartners in the agreement should have negotiated the transfer of the property to have justified them in claiming It results from the views thus ventured as to the meaning and scope of the agreement that upon the expiration of the 90 days during which the option was to exist the said agreement became functus officio, so to speak, and by necessary consequence all authority of the plaintiff and his associates in the agreement to sell or negotiate the sale of the property of Fassler under the terms of the said instrument ceased to exist or was terminated. It follows, therefore, that any act or step done or taken by the plaintiff and his partner and assignors or by any one of them looking to a sale or transfer of said property was wholly without authority from Fassler, so far as the agreement involved here is concerned. [1] The plaintiff construes the instrument | importance to all the parties connected thereas one involving two separate and distinct with. contracts or agreements, viz.: The one giving to the plaintiff and his assignors the exclusive right or option to sell, within 90 days from the date of the agreement the 465 acres of land described in the instrument for the net sum of approximately $55,000, they to receive as their compensation therefor all money obtained for the land in excess of that amount; (2) the other, by the terms of which the plaintiff and those interested with him in the agreement were to receive a broker's commission of 5 per cent. on the gross amount for which the land might be sold by them or through their negotiations within 90 days from and after the time of the expiration of the so-called option agreement. This construction is predicated mainly upon the consideration that the agreement provides for two different bases of compensation to the plaintiff and his co-obligees for effectuating a sale, and particularly upon this language of the contract: "If I sell to any one within ninety days after the expiration of this option to whom said property has been_recommended by said agents or their assigns, I agree to pay them a commission of 5 per cent. of the amount of said sale." [2] What, then, was evidently intended by the language of the agreement, "If I sell to any one within ninety days after the expiration of this option to whom said property has been recommended by said agents," etc., was that, if Fassler himself sold the property within the time so specified to any party to whom it had been recommended by the plaintiff and his associates during the life of the option agreement-that is, if the property had been so recommended while the plaintiff and his associates still had the authority to sell or negotiate the sale of the property under the provision expressly limiting their right so to do to the term of 90 days-then, in that case only, he would pay the brokers a commission of 5 per cent. on the gross amount for which he might so sell the property. But the construction so given the agreement is, in our opinion, contrary to its general tenor. It will be noted that the right conferred upon the plaintiff and his associates by the agreement to sell the property is expressly limited by the instrument to exist for the period of 90 days from the date thereof, while the construction to which the plaintiff subjects the writing would obviously have the effect of extending or prolonging its life 90 days beyond the period of time to which it was so limited. In other words, if the plaintiff's construction be correct, then certainly it was intended by the parties that the agreement should possess vitality and force for the term of 180 days in the place of the period of time specifically fixed therein as the term during which it should exist. Indeed, if the plaintiff's notion of the meaning of the language of the writing be well conceived and sound, the provision expressly designating the period of time during which the agreement should remain in force would be wholly meaningless and entirely supererogatory. But no such meaning can reasonably be extracted from the language of the agreement. It must be assumed that the provision expressly fixing a time to which the existence of the right under the option is restricted was intended to express the idea which its language naturally implies, and the only reasonably permissible construction of that language is that thus the parties in- Upon the foregoing considerations, an aftended to limit the time during which the au- firmance of the judgment and the order may thority of the plaintiff and his associates to rest, and therefore, and in further considerasell or negotiate the sale of the land should tion of the fact that the court made no speexist. This construction is only in conso- cific finding upon that issue, it is not necesnance with the prudent methods which ordi- sary to consider the point urged here by the narily characterize business transactions of defendant that the terms of the agreement Upon undisputed evidence the court found, as seen, that the negotiations for the exchange of Fassler's property for that of Maxson was initiated by the plaintiff within 90 days after the expiration of the 90 days within which the plaintiff and his associates in the agreement were authorized to sell the property, and thus it is to be observed that the plaintiff performed no service in the transaction eventuating in the exchange of the properties for which the plaintiff would be entitled to be compensated by the defendant under the terms of the written agreement involved here, even if it be conceded that the transaction amounted to a sale of the property or to be of a character which, had it taken place within the 90 days within which the authority of the plaintiff and associates to sell was expressly circumscribed, would entitle them to compensation on the basis of 5 per cent. on the ascertained value of the property received by Fassler in the exchange. were in no event performed by the plaintiff and his associates, for the reason that they did not sell the property or procure a purchaser ready, able, and willing to buy the same. No other points are raised on this appeal.sociation and there is any unclaimed deposit or The judgment and the order are affirmed. We concur: CHIPMAN, P. J.; BURNETT, J. STATE v. SECURITY SAV. BANK. (District Court of Appeal, First District, California. Jan. 26, 1915. Petition for Rehearing Dismissed by Stipulation Sept. 13, 1915.) 1. ESCHEAT 3-PROPERTY SUBJECT TO ESCHEAT UNCLAIMED PROPERTY." The state possesses the right and power to assume control of such property as shall have lain unclaimed for such a period of time as to raise the reasonable inference that it has been abandoned by its owner, and is either in danger of being lost to such owner, or is the proper subject of escheat, and such "unclaimed property" includes savings bank deposits for which no claimant is known, or the depositor cannot be found, where no withdrawals or deposits have been made for 20 years. [Ed. Note.-For other cases, see Escheat, Cent. Dig. §§ 3-5; Dec. Dig. 3.] 2. CONSTITUTIONAL LAW 296 ESCHEAT 2-UNCLAIMED DEPOSITS REQUIRING PAYMENT INTO STATE TREASURY. Bank Act (St. 1909, p. 87) § 15, as amended in 1913 (St. 1913, p. 145, § 16), requiring the president or managing officer of every bank to make and return to the superintendent of banks annually a sworn statement showing the names of depositors known to be dead or who have not made any further deposits or withdrawn any moneys for over 20 years, and providing that such deposits for which no claimant is known or the depositor cannot be found shall be deposited with the state treasurer, does not deny due process of law, so far as the bank's rights as a depositary are concerned, because of the lack of any provision for notice by the state prior to the exercise of its right to the delivery of the unclaimed deposits, as a bank is not entitled to any previous notice of the exercise by the state of its right to lay hold of the funds of depositors whenever in the interests of public policy the state assumes to exercise control over such funds, and moreover as the state's right to enforce payment into its treasury is predicated upon the bank's report, it is difficult to see what useful purpose would be served by any further notification to the bank. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 825-838, 840-846; Dec. Dig. 296; Escheat, Cent. Dig. 2; Dec. Dig. 2.] for such deposits, and that any action brought by any person against the bank shall be defendbank. Code Civ. Proc. § 1234, provides, relaed by the Attorney General without cost to the tive to the voluntary dissolution of corporations, that if the applicant is a savings and loan assons, the application must state the facts, and dividend in its hands belonging to unknown persuch facts must be stated in the notice of the application to be published by the clerk, and that if before the expiration of the time of publication any person files a claim to such deposit or dividend, the court must determine the claim, and, if it is established, order such money to be paid to him, and that deposits or dividends not so claimed, or as to which no claim shall be established, must be paid into the state treasury and be received, invested, accounted for, and paid out as is provided by law in the case of escheat estates. Held, that the lack of any provision in the Bank Act for notice to the depositors before requiring payment of unclaimed deposits to the state treasurer, does not result in a denial of due process of law, to the depositor and leave the bank liable to the depositor and entitled to retain the deposit, as the Bank Act contemplates no change of ownership of the deposits, but deals with possession only, and leaves the matter of ownership to be determined by proceedings embracing such notice to depositors to due process of law, and when the state, from as satisfies the constitutional requirements as motives of public policy, seizes and temporarily sequestrates private property to await the inception or determination of a more formal proceeding affecting its title and ownership, neither the actual owner nor the immediate possessor can object that such seizure is acomplished without such notice as would constitute due process of law, and hence the fact that the property is in the custody of the law would be a perfect de fense to the bank. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 825–838, 840-846; Dec. Dig. 296; Escheat, Cent. Dig. § 2; Dec. Dig. 2.] 4. ESCHEAT 8 UNCLAIMED DEPOSITS-REQUIRING PAYMENT INTO STATE TREASURY. The bank cannot rely upon the possible detriment to the depositor resulting from any loss of interest as a defense to a proceeding to compel it to pay the deposit into the state treasury, as it is relieved from liability and placed in a position to defend against any suit by the depositor for the interest as well as the amount of the deposit. Cent. Dig. §§ 20-22; Dec. Dig. 8.] [Ed. Note.-For other cases, see Escheat, Original application by the State for a writ of mandate against the Security Savings Bank. Peremptory writ issued. U. S. Webb, Atty. Gen., and John T. Nourse, Deputy Atty. Gen., for the State. McCutchen, Olney & Willard, of San Francisco, for respondent. Francis J. Sullivan, of San Francisco, amicus curiæ. Bank Act (St. 1909, p. 87) § 15, as amend- RICHARDS, J. This is an original applied in 1913 (St. 1913, p. 145, § 16), provides cation for a writ of mandate, requiring the for the payment into the state treasury of bank respondent, a savings bank corporation ordeposits where no claimant is known or the depositor cannot be found and no deposits or ganized and doing business as such under the withdrawals have been made for 20 years, and Constitution and laws of the state of Caliprovides that such deposit shall be subject to fornia, and having its principal place of the same distribution as is provided for in section 1234 of the Code of Civil Procedure, and business in the city and county of San Franthat the bank shall not be liable to any person cisco, to deposit with the state treasurer the sum of $7,425.16, the same being the aggregate of a number of deposits in various sums which have remained unclaimed in said bank for more than 20 years, according to the verified statement of its officials made to the superintendent of banks during the month of January, 1914, in accordance with section 15 of the Bank Act of the state of California, as amended in 1913. The respondent opposes the issuance of the writ upon the ground of the asserted unconstitutionality of this section of the Bank Act. Section 15 of the act as amended in 1913 in substance provides that, within 15 days after the 1st of January of each year, the president or managing officer of every bank must make and return to the superintendent of banks a sworn statement, showing the names of depositors known to be dead, or who have not made any further deposits or withdrawn any moneys during the preceding 20 years, together with the last-known place of residence of such depositors, and the amount of their deposits with the accrued interest, if any, thereon; and further provides that such deposits for which no claimant is known, or the depositor cannot be found, shall, together with the increment thereof, be deposited with the state treasurer in the same manner and subject to the same distribution as is provided for in section 1234 of the Code of Civil Procedure. The section also provides for the release from further liability to such depositors of all such banks as shall have paid the said deposits into the state treasury pursuant to the requirements of the section. [1] It may not be seriously disputed that the deposits which are the subjects of this proceeding, and to which the section of the act in question is intended to apply, are such as come within the designation of “unclaimed property," as that term is generally understood in law; neither can it be seriously contended, but on the contrary in this case it is freely conceded, that the state possesses the right and power to assume control of such property as shall have lain unclaimed for such a period of time as to raise the reasonable inference that it has been abandoned by its owner, and is either in danger of being entirely lost to such owner, or is the proper subject of escheat. In the exercise of this admitted and long-established right the Legislatures of most of our states have enacted laws embracing the procedure by which the state may assert its right of control over such property, and in so doing may not only terminate the right of its immediate possessor to the continued custody of such property, but may also put an end to its former ownership, and may even terminate the right of such absentee owner if perchance he should appear, before an escheat had been accomplished, to demand his property from the depositary to whom he had intrusted its possession. In construing and upholding enactments of this character courts have held with much uniformity that the depositary of such unclaimed property as is in question here is only entitled to insist that in the course of the procedure on the part of the estate for the escheat or other transfer of the ownership of unclaimed property, such notice shall be given to the depositary and the absentee or unknown owner as shall constitute due process of law. A fair example of such legislation and judicial construction will be found in the cases of Nelson v. Blinn, 197 Mass. 279, 83 N. E. 889, 15 L. R. A. (N. S.) 651, 125 Am. St. Rep. 364, 14 Ann. Cas. 147; Cunnius v. Reading School Dist., 198 U. S. 458, 25 Sup. Ct. 721, 49 L. Ed. 1125, 3 Ann. Cas. 1121; Malone v. Provident, etc., 201 Mass. 23, 86 N. E. 912; Provident, etc., v. Malone, 221 U. S. 660, 31 Sup. Ct. 661, 55 L. Ed. 899, 34 L. R. A. (N. S.) 1129. The chief contention of the respondent is that, since by the provisions of said section of the Bank Act the state may require banking institutions of the quality of respondent to pay into the state treasury the money of depositors which has been unclaimed by them for more than 20 years, without notice of any kind having been first given to the bank or to such depositors, it by so doing deprives such banks of a property right which they have in such deposits, by divesting them of the opportunity to earn such profits from such deposits as their possession would imply, and also by taking from them that which the depositor might demand of [2] It is the contention of the respondent them at any time, and to which demand they in the light of the foregoing course of legiscould interpose no defense for the reason lation and of judicial construction in other that the deposit had been removed from their states, that in each instance where the state custody without any such notice to the de- has undertaken to lay hold upon the unclaimpositor as would constitute due process of ed property of absentees, and either adminlaw; and in this regard the respondent con- ister upon it or work an escheat, the law tends that the provision of the section which has provided and the courts have required assumes to declare that the bank shall be no some sufficient form of notice to the delonger liable to its depositors for such depositary and the absentee owner as shall posits after their transfer to the state treas- satisfy the constitutional requirement as to ury, does not accomplish its avowed object, due process of law; and the respondent inbecause the depositor, not having been given sists that in the section of the Bank Act unany such notice of the change of possession der review in this proceeding no such notice, of such funds as would amount to due pro-and in fact no notice whatever, is required cess of law, cannot be bound by this provi- to be given by the state prior to the exercise sion of the act. of its asserted right to the delivery of these |