Phillips v. Mayer

Murray, C. J., delivered the opinion of the Court—Terry, J., and Burnett, J., concurring. 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 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. The answer of the Court to the instruction asked by the jury, must be taken in connection with the previous instructions given, [84] as well as the evidence in the case; and when taken in this light’ is not erroneous. The 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. Judgment affirmed.