VALLEY NAT. BANK OF PHOENIX
Judgment reversed with directions to dismiss complaint.
Knapp, Boyle, Bilby, Thompson and Henderson, of Tucson, for appellant.
Conner & Jones, of Tucson, for appellee.
Udall, Chief Justice. Stanford, Phelps, De Concini, and La Prade, JJ., concurring.
Udall, Chief Justice.
[74 Ariz. 291] The Valley National Bank, one of the defendants below, has appealed from a judgment entered against it in the sum of $ 4,842.25 in favor of plaintiff, Florence G. M. Milmoe. The plaintiff alleged that she was damaged in this amount when the defendant bank, as her agent, carelessly and negligently violated her instructions in paying off, with money furnished by plaintiff, a mortgage indebtedness owing Mary Roberts, mortgagee, without simultaneously procuring a new mortgage to her on the same property from the defendants Helen J. Milojevich and Stephen Milojevich. There is no charge of fraud or deceit on the part of the bank.
The admitted facts are: The defendants, Helen J. Milojevich and Stephen J. Milojevich, owned and operated the Celita Linda guest lodge at 398 W. Alameda in Tucson to which the plaintiff, Florence G. M. Milmoe, came as a guest in January of 1948. The defendant Mrs. Milojevich and the plaintiff became very friendly. In February the plaintiff borrowed $ 1,250 from a Tucson bank and then loaned it to the Milojevichs to enable them to pay off an indebtedness owing on furniture recently purchased. The note given to plaintiff therefor was payable in monthly installments and repayment was begun by the Milojevichs. In May plaintiff was approached
by the defendant Mrs. Milojevich, to see if she were interested in aiding them by paying off the purchase money [74 Ariz. 292] second mortgage on the lodge held by a Mrs. Mary Roberts and combining the furniture and mortgage indebtedness into one loan, thus allowing the Milojevichs to make a single reduced monthly payment. Nothing was done towards accomplishing this while plaintiff remained at the lodge. The two women however corresponded after plaintiff returned to her home in Illinois.
An offer to discount the second mortgage ten percent was made by Mrs. Roberts. This information was conveyed to plaintiff by letters from both Mrs. Milojevich and Mrs. Roberts. Defendant, Mrs. Milojevich, acting as agent for plaintiff, apparently advised the escrow officer at the bank that the discount offered by Mrs. Roberts might be accepted by plaintiff, though no detailed instructions as to how the transaction should be handled were conveyed to the bank. It is conceded that the bank's liability, if any, in this matter must rest entirely upon what is to be found within the four corners of the correspondence had between the parties to this appeal.
Under date of June 4, 1948, the plaintiff, writing from her home in Illinois, sent the following letter to the defendant bank at Tucson for attention of its escrow department, viz.:
"Gentlemen: This check is absolutely good. My reason for sending it instead of a cashier's check is that I like them back in my statements. This figure is approximately the amount before the May payment.
"I don't know how far you go in making up the new mortgage but if you write it please make it in my daughter's name, Marian M. Milmoe Brand, as well as mine, Florence G. M. Milmoe, and word it so that it becomes the property of survivor in event of death of either one. In this state we use the term "joint Tenancy" or "with right of survivor." You will know what to use for Arizona.
"If you don't happen to know Helen Milojevich's phone No. it is listed as Celita Linda Lodge. I have forgotten the number.
Florence G. M. Milmoe"
In reply A. G. Kimball, manager of the escrow department of the defendant bank, on June 7, 1948 (date her letter was received) wrote the plaintiff as follows:
"We have your letter of June 4th, enclosing your personal check for $ 4,900.00. Before any papers can be delivered or the mortgage released it is necessary for us to send this check in for ...