Ballard v. Nye

Citations

• 6 Cal. Unrep. 947
• 69 P. 481
• 1902 Cal. LEXIS 925

Syllabus

<p>Mortgages—Payment — Insurance — Agency.— Defendants executed a mortgage to plaintiff, the insurance on the building being made payable to her. The building burned, and the person who had acted as agent for defendants in negotiating the loan wrote her for the mortgage, to use in adjusting and collecting the insurance. She refused to send the mortgage to him, but sent it to 1ST.—one of the defendants. After the insurance was adjusted, N. wrote her that the company had the money, which could not be turned over to anyone but herself, and sent her a sum sufficient, with such insurance money, to pay the mortgage. She answered, acknowledging receipt of the money sent, and that she would soon go to the city to receive the insurance money. When she went, IST.’s wife stated that he was absent, and referred plaintiff to such former agent. When she went to him, he took her to a bank, and directed a transfer from his account to hers of a sum $209 less than the insurance money, and, on her objecting to the amount, stated that the balance would be paid in a few days. She thought she was dealing with the agent of defendants, and made no inquiry as to how he came by the money, and did not know that, pretending to act as her agent, he had surrendered the policy, received and receipted for the cheek in her name, and forged her indorsement thereto. Civil Code, section 1478, provides that “performance of an obligation for the delivery of money only is called payment.” Held, that the insurance money was simply additional security for the debt, and that there had been no payment of the debt, except as to the money actually received by plaintiff.</p> <p>Mortgage—Payment—Insurance—Agency.—The Receipt, Without Inquiry, of a part of the insurance money from the one who had pretended to act as plaintiff’s agent, and without notice or knowledge that he had so acted, was not a ratification of his acts.</p> <p>Mortgage—Payment—Agency—Innocent Sufferers.—Defendants were familiar with such prete