Gilman v. Curtis , 66 Cal. 116 ( 1884 )

Ross, J.

-Taking the most favorable view for the plaintiff of this case, as presented, it is clear that the decree entered in the court below cannot stand. Conceding that it appears with sufficient certainty that the policy in question was assigned by the plaintiff to the defendant, to be held by him as collateral security for certain advances to be and which were made by him, the legal title to the policy passed by the assignment to the defendant. The court should not, therefore, have adjudged the plaintiff the owner of the policy, and entitled to receive from the insurance company the whole amount due upon it. The interest of the plaintiff in the policy, upon that condition of fact, is in what remains of it after the advances, for the security of which it was assigned, have been satisfied, and defendant cannot be made to surrender it to the plaintiff until the advances made by him are repaid.

But the special issues, which were adopted by the court below as its findings, are indefinite, uncertain, and inconsistent. For example, upon an important question in the case, the answers of the jury to questions propounded were as follows:

“ 8. When plaintiff reassigned the policy to her mother, did she make such assignment absolutely for the benefit of her mother ?

“ Answer—For the benefit of her mother.

“ 9. If such assignment was not made absolutely and solely for the mother’s benefit, was it made with an understanding that Mrs. Curtis or defendant, Gilbert Curtis, should hold the policy subject to a trust in favor of plaintiff ?

“ Answer—Yes.”

Judgment and order reversed and cause remanded, with leave to the parties to amend their pleadings, if they shall be so advised.

Morrison, C. J., Sharpstein, J., Myrick, J., McKee, J., Thornton, J., and McKinstry, J., concurred.