¶1ON MOTION ROE REHEARING.
¶2The gist of the ground of counsel’s motion appears to be that, since this court has held that the bank was the authorized agent of the ’ plaintiff, B3>rd, to collect the note, and that Milhollin, in procuring the note from the bank, was acting as the agent of the defendant, Miller, the mere sending of a check to the bank, which was payable to and indorsed by Miller, amounted to a payment of the note, although^ the book*309keeper who carried it gave no such direction, and although the check was, in conformity with the usual course of business, deposited to the credit of Miller, the apparent owner. This contention is based on the theory that a principal is bound by the authorized acts of his agent within the scope of his authority. Civil Code (1910), § 3593.
¶3If Milhollin had actually paid over the check to the bank with direction that it be applied on the note held by the bank for collection, this principle might have application, although even then the defendant could not claim he had been injured, since he himself has received and appropriated to his own use the proceeds of the check. In a case such as that, however, the defense of payment might be good, and the owner of the note might have to look to the bank, and the bank, in turn, to Miller. However, since it is undisputed that the bookkeeper did not turn over the check to the bank for the benefit of Byrd, or with any sort of direction that it go in settlement of the note, and since the bank, in the absence of any such direction, simply applied the check to the account of the person having apparent ownership, these questions do not arise; and it is our opinion that the note has never been paid, either in fact or in law.
¶4Rehearing denied.