Drain v. Doggett, Bassett & Hills

Beck, J. — The petition alleges that plaintiff, being indebted to defendants, delivered to them, as collateral security, a note of hand on one Bryan, which was collected by defendants and the amount was not credited upon plaintiff’s indebtedness. In ignorance of the fact of the collection of the Bryan note, plaintiff paid the full amount of his original indebtedness to defendants, and he now brings this suit to recover the amount of the note used as collateral security. The defendants deny the averments of the petition. There was evidence tending to prove that the Bryan note was secured by a policy of insurance on a building, which, in case of loss, was to be paid to the holder thereof to the extent of the amount" due thereon. The building'was burned, and, upon the adjustment of the loss, the agent of the insurance company gave to the attorney of defendants, who at the time held the note, a draft for the amount due. This was never [684] paid and the insurance company was insolvent. There was no evidence to prove that the attorney of defendants was authorized by his clients to receive the draft from the insurance company in payment of the Bryan nóte. The court instructed the jury that if they found the draft was accepted by the attorney in payment of the note, they should render a verdict for plaintiff, and refused an instruction asked by defendants to the effect that an attorney cannot receive in payment of a collection in his hands any thing except money, without authority so to do from his client. The ruling of the court upon these instructions is erroneous; the one given should have been refused, and that asked by defendants should have been given. The law is well settled and has been so held by this court, that the holder of a note for collection, if an agent or attorney, has no right to receive in payment anything except money, unless specially authorized so to do by his principal or client. Graydon, Stanwick & Co. v. Patterson & Co., 13 Iowa, 256. Other points presented and discussed by counsel of the parties need not be considered. Reversed.