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7 Cal. 81

Phillips v. Mayer

California Supreme Court

Decided July 1, 1857

California Supreme Court · decided 1857-07-01

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>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 therewith plaintiff’s debt. That Hermann collected for Mayer altogether about the sum of five thousand two hundred dollars, which was two thousand three hundred dollars more than plaintiff’s debt. That he did not endorse any payment whatever on the Phillips note, nor had he marked it paid, but had simply credited Mayer on his books with the money received for him, and had made no charge thereon against plaintiff. The Court gave the following charge :</p> <p>" That if the jury believed, from the evidence, that Hermann was the agent of both parties, to collect and receive moneys, and he collected and had in his possession money of the defendant, which the defendant required him to apply on the note and mortgage—if the application was not in fact made, then the plaintiff is entitled to recover.</p> <p>“ 2. The transfer must either have been made upon the books of the agent, or he must have surrendered the note, or endorsed it satisfied, or done some other act that clearly indicated that the money was appropriated for the payment of the plaintiff’s debt.”</p> <p>The jury found a verdict for plaintiff, and the defendant appealed.</p>

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Decided 1857-07-01

How this case has been cited

Cited by 5 later decisions — most recently March 1929

5 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Murray, C. J.,

¶1delivered the opinion of the Court—Terry, J., and Burnett, J., concurring.

¶2There 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.

¶3Unless 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.

¶4It is contended, however, that the law made the application. The law does not apply money until it has passed from the debtor; so long as it remains in the hands of the debtor, or his agent, it may be diverted for any other purpose, and there can be no legal appropriation thereof.

¶5The answer of the Court to the instruction asked by the jury, must be taken in connection with the previous instructions given, *84as well as the evidence in the case; and when taken in this light’ is not erroneous.

¶6The Court improperly admitted testimony to show how much the plaintiff had lost by the failure of Hermann; but this seems to have been done as an offset to similar evidence, going to show that the defendant was also a loser from the same cause. The admission of this evidence was an irregularityj but, under the circumstances, it ought not to vitiate the judgment. The facts found by the verdict are conclusive.

¶7Judgment affirmed.

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