Phillips v. Mayer
California Supreme Court
Appeal from the Superior Court of the City of San Francisco. Lydia Phillips sued Mayer in the Court below, on a note, and prayed that a certain mortgage, given as security, be foreclosed. The answer of the defendant contained the plea of payment, and also set up matter in the nature of a cross bill, praying that the note and mortgage be canceled.
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Appeal from the Superior Court of the City of San Francisco. Lydia Phillips sued Mayer in the Court below, on a note, and prayed that a certain mortgage, given as security, be foreclosed. The answer of the defendant contained the plea of payment, and also set up matter in the nature of a cross bill, praying that the note and mortgage be canceled. On the trial, it appeared that plaintiff had placed Mayer’s note in the hands of one Hermann, for collection, and that afterwards the defendant, Mayer, appointed Hermann his agent for the purpose of collecting certain rents and notes, and paying…
1Opinion of the CourtMurray, C. J.
There was no error in the instructions of the Court. Hermann was the agent of the plaintiff to collect the note, and was also the agent of the defendant to collect certain other notes due the defendant, and to apply the proceeds to the payment of the note due to Phillips.
Unless this appropriation of the money so collected was, in point of fact, made, the loss must fall on the defendant, and not upon the plaintiff. The record shows, that there never was such an application of the funds collected, neither is there any evidence of a single act which would tend to raise the presumption.
It is…
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