
    Annie F. Darragh, Resp’t, v. Reuben Ross, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    1. Evidence—Parol to vary writing.
    Admissions of a defendant that he received more than the face of a mortgage and had collected more than he had a right to collect, are not inadmissible as varying a written paper. Nor is evidence that less was received on a check than its face called for or that nothing had been received on it objectionable on that ground.
    2. Witness—Contradiction of.
    Plaintiff may prove that defendant’s witness had no authority to act for her as claimed by him, although such claim was brought out on his cross-examination as new matter.
    3. Money had and received.
    One who receives money for a specific purpose and keeps the same •without applying it, is liable as for money had and received.
    Appeal from judgment in favor of plaintiff and from order-denying motion for a new trial.
    Action for money had and received by defendant for the use of plaintiff.
    The defendant’s witness, Yernam, on cross-examination testified that in the transactions in controversy he was acting for plaintiff and her husband. Thereafter, on the examination of plaintiff’s husband, he was allowed to testify that Yernam had no such authority.
    The charge excepted to is: “ That is, having this mortgage for $3,500 either upon this or upon other property, if Mr. Reuben Ross received $1,700 and agreed to apply it in reducing the mortgage and he did not do so, then he has misappropriated the money, and a judgment can be recovered against him for the amount with interest.
    “ On the other hand if you believe Mr. Darragh’s statement and his theory that this mortgage was paid by him to Mr. Ross out of money which he carried around in his pocket; he says that he always had $2,000 or thereabouts in his pocket, then Mr. Ross has $1,700 of the plaintiff’s money which he has not accounted for.
    “But if the names of John Ross and John Webb were simply a cover for Reuben Ross, and he put the title in them to hold for himself, he must account for that money. If you believe the-facts so demand.”
    
      tTames M. Hunt, for app’lt; S. K Fairfield, for resp’t
   Barnard, P. J.

This action is brought to recover for money had and received by the defendant for plaintiff’s use.

The amount claimed is made up of four different sums amounting to $11,515, upon which a payment is acknowledged in the complaint of $4,000, leaving a balance of $7,515.

The answer is a general denial and payment. The evidence shows that the plaintiff was the owner of lands at Rockaway, and she sold a part of it to Bester and Mayer, and another portion to a Mr. Shear. The Bester and Mayer sale required the payment of a $1,300 mortgage on the property to give them a. clear title. The plaintiff testifies that she gave the money to defendant to pay this mortgage and that he failed to do it, and she. was compelled to and did pay it out of the $10,000, which was. the purchase-price of the property sold Bester and Mayer. The amount due on the mortgage was $1,700, and that defendant received $1,700 therefor, which he applied to his own use.

There was a bond and mortgage for $7,000 given plaintiff on the Bester and Mayer sale. This mortgage was assigned to John Ross, defendant’s brother, and by him assigned to John Webb-Over $8,000 was received on this mortgage ; while only $4,000 had been paid plaintiff on it and the assignment was made to secure this $4,000. The plaintiff claims only $3,000 had been loaned on it. As to the first of these items the parties are in direct variance, and as to the second item the defendant claims that John Ross was the real assignee of the mortgage and who made the loan of $4,000. There is proof tending to show that the real party was Reuben Ross and his brother’s name was merely a cover.

The plaintiff claims that $1,000 was paid by defendant on account of this assignment subsequently, and that the $4,000 payment was made up in this way. There is the same dispute in. respect to the $600 mortgage growing out of the Mayer and Bester sale. As to the two transactions growing out of the sale to-Shear, the same unaccountable variance exists between the parties in this evidence.

The plaintiff says that defendant secured $1,000 and $700 out of the moneys secured on the sale. The defendant says he seoared the $1,000 mortgage for the plaintiff’s husband’s debts, and he produced a receipt signed by the plaintiff acknowledging the receipt of the money. The judge charged the jury that this transaction was clear and clean, and, further, that as to the seven hundred, no reason appeared why this sum was paid to the defendant.

Under this conflicting evidence the jury found for the plaintiff $8,200. Unless some error was committed on the trial it is a case where the verdict of the jury should stand. The tribunal to settle questions of fact has passed upon the case, where the dispute is unusually sharp and one party or the other mistaken in their testimony. The fact that the papers support the defendant is not controlling. Papers do not always represent the real transaction, and the jury have found that they did not in this case.

It is not erroneous to permit a witness to testify that the defendant admitted that he had received more than the face of the $7,000 mortgage, and that he had collected a little more than he had a right to collect. It waslc also proper to permit evidence that less was received on a chec than its face called for, or even that nothing had been received for it. The exception, therefore, is not sustained by the principle that such evidence is objectionable for varying a written paper. It is competent for the plaintiff to prove that the witness, Yernam, had no authority from her even if he had stated that he had upon liis own cross-examination. It was a correct rule of law which was given in the portion of the charge excepted to by the defend.ant. It is merely that if the defendant received plaintiff’s money for a specific purpose and kept the same, without applying it, he would be liable to plaintiff.

There was no error in the refusal to postpone the trial. The question of the agency of the plaintiff’s husband to receive payments on account of his wife’s business in the matter involved in this action was not an issue. Payments to him, if made, were treated as payments to her, and proof of his power to receive is abundant. The judge made no allusion to such a question, and the plaintiff testifies, “my husband did all the business.”

The question being one purely of fact, and the record disclosing no error upon the trial or in the charge of the trial judge, the judgment should be affirmed, with costs.

Pratt, J., concurs.  