Schomaker

This is an action based on a promissory note executed to the plaintiff by the defendants J. B. Petersen and S. Matthesen, together with their respective wives, and at all times after its delivery kept by plaintiff in her own exclusive possession.

The question presented on this appeal by plaintiff concerns itself with the authority of a real estate agent, who had negotiated the transaction giving rise to the note, to bind the payee by receipt of a payment procured on such agent’s own solicitation, and misappropriated by him.

The plaintiff, Mrs. Schomaker, acting through E. B. Field, doing a brokerage business in Oakland under the trade name of E. B. Field Co., sold to Messrs. Petersen and Matthesen a lot of land, taking as part payment a promissory note for $1900, executed by all the defendants and secured by their deed of trust. The sale was closed by an employee of Field, named Fred Hauschildt; and the note, with the deed of trust, was duly delivered to the plaintiff and has been retained ever since in her possession.

The note, which was dated October 29, 1923, was made payable one year thereafter, and bore interest .at the rate of seven per cent per annum, payable monthly,…