Ballard v. Nye

GRAY, C. This is an action for a balance of some $200, besides interest, due on a promissory note, and to foreclose a mortgage given by the above-named defendant and his wife, also a defendant herein, to secure the payment of said note. The trial court found that the note had been entirely paid, and gave judgment for defendants. The plaintiff, contending that the finding of payment is contrary to the undisputed evidence, appeals from the judgment and from an order denying her a new trial.

The defendants Nye and his wife duly executed the note and mortgage sued on to the plaintiff. Some six months thereafter a house included in the mortgage was burned. Upon this house defendants had previously procured an insurance policy for $1,000 which policy was by indorsement thereon made payable to the plaintiff, as mortgagee,” as her interest may appear.” After the fire the insurance company adjusted the loss and allowed plaintiff $719.44 on account thereof. On the same day of this allowance Nye wrote from San Francisco to plaintiff, at Los Angeles, telling her of the allowance, and that the money was in the hands of the insurance company for her, and could not be turned over to any person but herself, and inquired of her if he should request the insurance company to send her money or draft to her at Los Angeles. He also inclosed a money order for $30 to her, and stated in the letter.that this amount, together with the amount which the insurance company had retained for her, would pay the note and mortgage in full. Soon thereafter the plaintiff wrote to Nye, acknowledging receipt of the money order, and stating that she was coming up to San Francisco before long, and that the money could remain as fit then was until she came up, when she would attend to the matter herself. Some three months later plaintiff went to San Francisco and called on the Nyes. Mr. Nye was not at home, but Mrs. Nye stated to her that she would have to see a Mr. ITayford about her money; that. Nye had nothing more [949]to do with it; and Mrs. Nye directed her where to find Mr. Hayford. This Mr. Hayford had previously acted as agent of the Nyes in negotiating the loan from plaintiff on the note and mortgage; and, soon after the fire occurred, Hayford wrote to plaintiff from San Francisco to send him the mortgage, that the insurance company might be able to see what her interest was in the property. In response to this letter she sent the mortgage to Mr. Nye, thus declining to send it to Hay-ford, as he had requested. In pursuance of the directions received from Mrs. Nye, plaintiff found Hayford, and asked him about her money; and, after several days’ delay, Hay-ford took her to the Union Trust Company’s Bank, and requested an officer of the bank to transfer from his (Hay-ford’s) account to her account $520. She said to him that that amount was not all that was due her, and that she wanted it all. He admitted that there was something like $200 more due her, but made some excuse for not having it all paid at that time, and said that the balance would be paid her in a day or two. ■ The plaintiff did not know or understand how the money came to be in the bank in Hayford’s name instead of in her own name, but supposed that he was in some way acting for the Nyes in paying the money. She had given Hayford no authority to act as her agent in any way, and, did not then know that Hayford had assumed to act as her agent, and-had drawn the money allowed her by the insurance company, and given them a receipt in her name. All this, however, Hayford had done. She knew that this was a part of the insurance money allowed her, but how it came into the hands of Hayford she seems not to have known, but supposed, as appears from her testimony, that he was handling it as the agent of the Nyes. Plaintiff testifies that she did not agree to release the Nyes from the balance that was unpaid, and never agreed to look to Hayford for such balance. She made no inquiry as to where Hayford got the money. She made several efforts thereafter to get the balance of the money from Hayford, but failed, and thereafter made demand upon the Nyes, and on their failure to pay, brought this action. Plaintiff seems to have misunderstood the purport of Nye’s letter to her wherein he stated that the money was with the insurance company, for she testifies: “When I went with Hayford to the bank, I supposed the money that had been allowed me on the policy by the insurance company