majority">Parks, Associate Justice:

In this case the plaintiff in error sued the defendant in error on a note assigned to him by Charles Samples, the payee, which note was dated April 22, A. D. 1865, due one day after date, for the sum of $200, bearing ten per cent, interest, and on which note $40 was credited in June, 1876, and $150 was credited in January, 1877.

Defendant pleaded the general issue. There was a trial by jury, verdict for defendant, and judgment against plaintiff for costs. A motion for a new trial was overruled, and the case came to this court by writ of error.

The plaintiff introduced the note and assignment thereof to him without objection. The defendant, Prank Samples, testified as follows: In the fall of 1876 — in September, I think — the plaintiff, who had the note, came to this county to make a settlement with me. I had some money coming to me in Virginia, and a brother of mine in Kentucky owed me fifty dollars, and I gave the plaintiff a power of attorney to go to Virginia and collect what was due me, and, after taking out the amount of the note, to send me the balance. There was near six hundred dollars due me in Virginia from nay brothers’, father’s and grandfather’s estate. I gave plaintiff power of attorney to receive this, and also fifty dollars due me by my brother in Kentucky.' It was understood that the power of attorney paid the note sued on, and plaintiff was to send me what was over, together with the note. It was understood the power of attorney paid the note sued, and the plaintiff was to go to Virginia and collect the money coming to me there. Plaintiff had no authority to sell my claim and interest.

On cross-examination, plaintiff testified that:

It was understood the power of attorney settled the note; the plaintiff was to go to Virginia and collect the money and send me what was over. The plaintiff distinctly agreed that the power of attorney should pay and settle the note. The note was not delivered to me because plaintiff said it was then in Missouri; he was to send it to me. Plaintiff afterwards wrote to me that he went as far as Kentucky, was taken sick, and sold out my interest for the pitiful sum of $250. He wanted me to pay the balance of the note, but I refused, because the note was paid by the power of attorney. At the time I gave the power of attorney, I was solvent and able to pay my debts and acknowledged that I owed the note in question. I was not to pay the plaintiff for going to Virginia. I do not remember whether or not I agreed to pay part of his expenses. He was to send me what he collected in excess of the amount of the note.

This testimony of the defendant is uncontradicted, and as the plaintiff did not offer himself as a witness and did not produce the power of attorney, there is no reason why entire credit should not be given to the statement of the defendant.

The only other evidence which it is material to notice is that W. P. Samples, by whom it is proved that S. G. Samples collected in Virginia, on the power of attorney, $465, that being more than the amount of the note. From this evidence, it appears:

1st. That there was no sale of the power of attorney to S. G-. Samples, the alleged sale being unauthorized and void, and having been repudiated by the defendant as soon as he heard of it.

2d. That whether the plaintiff, John L. Samples, was authorized by the power of attorney to appoint any one to go to Virginia and get the money or not, yet as a matter of fact, he did do so.

3d. That said agent or messenger received or collected, of the moneys belonging to the defendant in Virginia and which by the agreement between the plaintiff and defendant was to be appropriated to pay the note sued on, an amount amply sufficient to pay it.

The question before this court is, briefly, whether the verdict of the jury is so clearly wrong that it is our duty to reverse the verdict of the district court in refusing to set it aside and grant a new trial. We cannot say that it is.

On the contrary, we think the better opinion is, that so far as the collection, receiving and possession of the money obtained by S. Gr. Samples in Virginia affects the rights of the defendant in this suit, the plaintiff and his said messenger or agent are one that the possession of this money by the agent is the possession of the plaintiff, that whether the money was actually and literally applied to the payment of the note or not, the law so applied it and the note was paid.

As to the question of pleading raised by this record, we think the evidence was properly admitted under the general issue, and as the instructions did not mislead the jury it is not necessary to discuss them. The judgment of the court below is affirmed.

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