Opinion
APPEAL from a judgment of the Superior Court of the city and county of San Francisco.
The agreement on which the action was based will be found in the report of the case on the former appeal -- 54 Cal. 58.
COUNSEL:
Doyle, Barber & Scripture, for Appellant.
McAllister & Bergin, for Respondent.
OPINION
PER CURIAM.
When this case was before the late Supreme Court, on a former appeal from a judgment upon demurrer to the complaint in the action, 54 Cal. 58, the court announced as the law of the case that the plaintiff had the right to elect to regard the two promissory notes which constituted the subject-matter of the agreement upon which the action was founded, as constituting one entire fund, and to take as his share of the fund the unpaid note which had come into the hands of the defendant, who claimed to hold it as executrix of the estate of Isaac Friedlander, deceased. Defendant therefore held the note for the benefit of the plaintiff, and the action was maintainable against her personally, and not as representative of the estate of Friedlander.
That decision has been challenged on the argument of this appeal; but whatever opinion may be entertained of the original question involved in the action in which the decision was rendered, the decision itself must be regarded as a final determination of the rights of the parties to the promissory note, which was the subject-matter in suit. The plaintiff was entitled to it or its proceeds if collected by the defendant. Holding the note as she did in trust for the benefit of the plaintiff, the defendant had no authority to deal with it as her own, or as an asset of the estate of which she was executrix; she could not use it in payment of her own debt, or of any claim against the estate. Hence, when she, instead of discharging her trust by surrendering the note to the plaintiff, collected it from the maker, she became personally liable for the proceeds thereof; and she was not entitled to off-set the amount by any claim which the maker of the note might have had against the estate.
Judgment and order affirmed.
Hearing in Bank denied.