
    Wright v. Schofield.
    Where an attorney at law, in answer to a rule against him to pay over money collected on a promissory note, sets up that he received from the debtor about half the amount of the note, with instructions to pay the same to the creditor on certain specified conditions, and his answer is traversed, and upon the trial of the traverse all the evidence, including his own, shows the answer to be false as to the amount collected by him, he having really collected nearly four fifths of the note, and his evidence also shows-that the money was not paid to him with any such instructions as are set up in the answer, a verdict finding the answer false was a necessary result of the evidence; and while directing against him a verdict for the amount admitted by his testimony to be in his hands, with interest from the service of the rule, may be irregular, yet it is not reversible error, the verdict embracing the proper amount for which the rule should be made absolute, as the consequence of any finding which was possible under the evidence and pleadings.
    July 24, 1893.
    Rule. Before Judge Miller. Crawford superior court. October term, 1892.
    Wrigbt as an attorney at law was ruled by A. 3). Schofield, surviving partner of J. S. Schofield & Son, alleging that on or about April 24,1890, they sent to Wright, through R. G-. Dun & Co., a note for $51 principal, made to Schofield & Son by Andrews and Mathews, which Wright had collected, and that he had refused to pay over the proceeds on demand. Wright’s answer was traversed, and on hearing the testimony the court directed the jury to find a verdict for the plaintiff for $40 and interest from July 16, 1892, at seven per cent. Wright moved for a new trial, because the verdict was-contrary to law and evidence, and because the court did not allow the jury to pass upon the issues presented. The motion was overruled. The evidence is as follows:
    Mathews testified: About two years ago Wright presented the Schofield note for payment; said it was placed in his hands for collection. I did not pay the full amount of it, but paid $40. I did not get tbe note. A cane-mill for which, the note was given ivas broken and out of repair. It was my understanding with Wright that the $40 paid was to take up the note. Do not remember that it was sued. It was for $51, but there was a defect in the machinery for which it was given. I claimed a reduction for that defect, and was willing to pay $40 and settle. After I had paid Wright the $40, an agent of Schofield & Son came to see me about the note. I told him I had pfiid Wright the $40 in settlement, and told him of the deduction I claimed. He looked at the machinery, said the deduction was reasonable and satisfactory, and that his firm would accept the $40 in full payment. I considered the whole matter settled between me and Schofield. I have no claim against him, and he makes none against me. I did not know he had not received the $40 until some time after-wards. I do not remember to have had any understanding with Wright that he was to hold the money and not pay it over to Schofield.
   Judgment affirmed,.

Wright testified: I received for collection.a note in favor of Schofield & Bro.; did not receive it from Schofield, never had any dealings at all with Schofield; note ivas sent me from Dun’s mercantile agency. Mathews and Andrews paid me $40 with instruction to hold it up unless it Avould settle the note in full. I kept the money on instructions from MatheAvs. I am ready to pay it over when I am directed as to Iaoav and to whom to pay it. I sued the note in justice’s court, and con-tin ued for settlement. The suit is still pending. After I had the $40, Dun’s agent came to see me, and I offered him the $40 as MatheAvs had directed me, and he positively refused to accept it in full settlement of the claim. I had no authority to pay over the money only in full settlement, as I had accepted it from MatheAvs under that promise. The man told me he came to see about it, and came to receive payment ouly in full for the note.

Andrews testified: I never had any understanding with Wright about money paid on Schofield note. It was sued in justice’s court. I do not know what was done with the note or money.

M. G. Bayne, for plaintiff' in error.

Steed & Wimberly, contra.  