Righetti

Action upon a promissory note. Judgment for defendant. Appeal by plaintiff therefrom, and from an order denying a new trial.

The findings of the court—all of which, except as hereinafter noted, have some support in the evidence—and the evidence in the record together establish the following facts: The note sued on was executed by defendant as consideration for the purchase of an interest in a business theretofore conducted by plaintiff’s husband and defendant. Before its maturity the husband was adjudged a bankrupt, and a trustee in bankruptcy instituted proceedings to have the note declared a part of the estate of the bankrupt, for its possession or the value thereof, and procured an injunctional order that the plaintiff be restrained from selling or disposing of the note pending the action. During all of the period involved in this action the husband of the plaintiff acted as her agent with full authority in the premises. At the maturity of the note defendant notified the husband as such agent that he intended to deposit the money in bank in extinguishment of the note. Thereupon, it was agreed that if the defendant would retain the money until the proceedings instituted by the…