Menkens v. Watson

Scott, Judge, delivered the opinion of the court. The most important paper in this cause and one which is the foundation of the defendant’s liability is neither to be found in the record nor is it set out in the finding of the court. It seems that the money of the plaintiff, which was due from the estate of Duhring, was lost by loaning it out to one who proved afterwards to be insolvent. It does not appear that the administrator Hastings was liable for this loss, as the law of California in relation to this subject was not given in evidence. The inference would seem to be that ho was not liable, as it is stated that the loan was made with the approbation of the judge who made the appointment of the administrator. Now, if the plaintiff’s debt was lost before the defendant interfered, a strong reason would be required to subject him to its payment — stronger than any found on the record. The motive of the defendant in giving the receipt and acting as agent for the plaintiff should have been shown. If the defendant had no authority to act in the matter, his conduct might have been disclaimed, and Hastings, if he was liable, might still have been compelled to pay the debt. The defendant not being a regularly constituted agent, but only becoming so by the adoption of his act, his act must be taken as it is, and it can not be made a ground for treating him as though he was a lawful agent. As the plaintiff seeks to subject the defendant to liability by reason of the [167] receipt, it should have been set out in the record. The principle that an agent can not receive any thing but money in payment of a money demand is a correct one, but its application under the circumstances of this case is not very apparent. The judgment is affirmed; the other judges concurring.