This ease was originally decided on appeal by the district court of the third district and the following opinion, prepared by Mr. Justice Hart, was filed:

That the so-called oral agreement in question must be held to have involved a direction by the debtor to the bank to apply the moneys received by it from Cavagnaro & Co. in the manner and order explained, cannot be doubted.

The contention of the plaintiff that no evidence was introduced disclosing that the principal debtor, Cavagnaro & Co., took any part in the making of the oral agreement or the direction that said moneys should be applied as stated is not borne out by the record. The witness, Gates, testified that he was president and manager of said corporation at the time it became insolvent, in October, 1905; that he attended to all its affairs at that time and also in the year 1906; that he was present as a representative of Cavagnaro & Co. when the oral agreement was had with the bank’s manager, Mr. Tognazzi, and participated therein and that subsequently he apprised Mr. Brunner, an official of the bank, who, it was admitted, had authority to act for the plaintiff, of the understanding that the moneys paid by Cavagnaro & Co. should be applied upon the notes in suit, after the note for $4,780.94 was satisfied. It is true that it does not affirmatively appear what the precise scope or limitations of Gates’s authority were as president and manager of Cavagnaro & Co., but we have a right to infer, from the fact that he was the corporation’s president and manager, and from the fact that he attended to and managed all its affairs both before and after it became embarrassed from financial difficulties, that he possessed full authority to act for and bind it on the occasion of the making of the oral agreement, and that his election, manifested to the bank, at the time referred to, as to the manner and order of the application of the moneys paid by Cavagnaro & Co. to the bank, was that of the latter, it being clear that said transaction involved an act within the ordinary or usual course of business of said corporation. (Martin v. Webb, 110 U. S. 7 , [ 28 L. Ed. 49 , 3 Sup. Ct. Rep. 428]; Carpy v. Dowdell, 115 Cal. 677 , [ 47 Pac. 695 ]; Waterman on Corporations, sec. 30; Preston v. Central Cal. Irr. Co., 11 Cal. App. 190 , [ 104 Pac. 462 ]; Stevens v. Selma Fruit Company, 18 Cal. App. 242, 251 , [ 123 Pac. 212 ].)

“It is next claimed that certain testimony was erroneously permitted to go to the jury and that its effect was to prejudice the jury against the plaintiff. The testimony of which complaint is thus made and which was brought out, over the objection of the plaintiff, in the examination of the defendants’ witness Reynolds, who was connected with Hilbert Mercantile Company, at the time of the transactions concerned here, tended to show, so it is urged, that the bank, although entering into the agreement with the other creditors of Cavagnaro & Co. to accept in full settlement of all claims against said corporation payments on the basis of 35 cents on the dollar, had in fact received payment in full of all indebtedness of Cavagnaro & Co. to it. It is manifest that such testimony could have no relevant bearing upon the issues made by the pleadings. It appears, however, that the only testimony showing or tending to show that the bank received more than 35 cents on the dollar was brought out in the cross-examination of the defendants’ witness, Gates, by counsel for the plaintiff himself. Having stated, on cross-examination by the plaintiff’s attorney, that the bank had received a settlement of Cavagnaro & Co.’s indebtedness to it the full amount thereof, that witness, still under cross-examination, was asked by a juror: “Was there anybody else excepting the bank who got 100 .cents?” to which question the witness replied, no objection having been interposed thereto: “Not that I know of.” The witness, Reynolds, was thereafter asked by the attorney for the defendants and permitted, against the objections of the plaintiff, to answer the following questions: “Did you know anything about the existence of the $8,750 note other than the $4,700 thirty-ñve per cent note at the time these notes were being signed in the office of the Swiss-American Bank ? A. I did not. I learned of that after the fire. Q. Did you know that the bank was receiving, or was to receive, anything more than thirty-five per cent ? A. I did not. ’ ’ Thus it will be observed that Reynolds did not himself say that the bank was receiving in settlement of Cavagnaro & Co.’s indebtedness to it an amount in excess of that compounded by the creditors of the former. While the questions thus put to the witness assumed the truth or existence of the fact to the proof of which they were addressed, and were for that reason improper, even though it was true that the bank received more than it agreed to accept, since, as stated, such testimony was wholly irrelevant to the issues, yet, it cannot be said, in view of the fact that counsel for the plaintiff himself brought out the fact on cross-examination or without objection permitted a juror to bring it out, that the questions to Reynolds or the form in which they were propounded could have added to or intensified the injury which the plaintiff had thus already inflicted upon himself.

Subsequently the case was reheard and the learned district court, while adhering to its original views, reversed the judgment and order upon the grounds: 1. That the lower court tried the case upon the erroneous theory that the sole consideration which moved the defendants to become parties to the notes was the oral agreement; and, 2. That an instruction given by the trial court evidenced this theory and misstated the law to the injury of the plaintiff. A hearing in this court was granted in order that we might further consider these points.

Examining the pleadings we find that the answer does not set up the oral agreement as the sole consideration for the signing of the note by defendants. The first defense pleaded to each note is that said note, both principal and interest, had been paid. To each note there is. set up in the answer a defense based upon the verbal understanding with reference to the order of payment of the obligation of the F. Cavagnaro Company and the fact that sufficient money had been received by the bank on account of said company to pay the notes in suit if the credit had been applied in the agreed manner. This part of the pleading is set forth in the opinion of the district court of appeal which we have quoted above. When proof of the oral agreement was offered, however, the objection interposed by plaintiff was that the execution of a contract in writing supersedes all the negotiations which preceded or accompanied the making and signing of the instrument, and that proof of the oral agreement therefore was not admissible to vary the terms of the note. The court below held that the proffered evidence of the oral agreement was admissible on the ground that it constitúted the sole consideration for the notes in suit. The ground of this ruling was admittedly erroneous but the ruling itself was nevertheless correct. The agreement or understanding pleaded by defendants did not alter nor modify the terms of the notes. Therefore appellant’s objection to its introduction in evidence was untenable. It was admissible under section 1479 of the Civil Code. But the court manifested further by an instruction the theory upon which the case was tried. The instruction was as follows:

This instruction was erroneous for the reason stated in the quoted opinion of the district court of appeal,—namely, because it sought to confine the jury to the oral agreement as the sole consideration for the acts of the defendants in signing the notes. But defendants assert that plaintiff was not prejudiced by the instruction, which placed upon the defendants the burden of proving both the existence of the agreement and also that it was the sole consideration for the notes in suit. But appellant says he was entitled to have submitted to the jury directly the question whether or not the oral agreement involved a direction to the bank by the debtors for the application of the payments to the satisfaction of particular obligations. The instruction does not submit that question to the jury. There was no dispute at the trial regarding these facts: 1. The bank had loaned to the Cavagnaro Company the money represented by the notes; 2. Defendants had signed the notes; and, 3. Enough money had been collected on account of the Cavagnaro Company to pay the notes if applied according to the wishes of the defendants. The sole question pertinent to the oral arrangement which the court should have propounded to the jury was whether or not there had been a direction for the payment of the notes in the order for which defendants contended. The quoted instruction involves that very matter and more. It seems to us therefore that the subject of “sole consideration” may be eliminated from the instruction and it will state correctly the law regarding application of payments.

Appellant makes the further objection that the instruction refers to an agreement between the defendants and the bank and therefore is not by its terms applicable to a direction to the bank by the debtor, the F. Cavagnaro Company, regarding the order of settlement of the latter’s notes. Of course, no agreement between the plaintiff’s assignor and the defendants without the concurrence of the debtor, the F. Cavagnaro Company, would bring the facts of the case under the provisions of section 1479 of the Civil Code. But we do not think the jurors were misled by the careless and inaccurate use of the word “defendants.” All of the proof was directed to an agreement between the bank and all of the parties to the notes relative to the order of payment. There was no testimony regarding any agreement between the bank and the Borgfeldts without the other parties to the note, including the debtor; and the jury could not have been misled in reference to the “agreement” mentioned by the court in the instruction. Assuming that the court did adopt an erroneous theory upon the subject of the consideration for the notes (although appellant himself offered an instruction by which the court's attention was directed to section 1479 of the Civil Code, but which was rejected for certain erroneous statements of the law) the fact remains that the jury considered and determined the one vital question in the case, i. e., was there the direction by the debtor to the bank that the notes of the F. Cavagnaro Company should be paid in the order specified in the answer.

For the reasons given in the original opinion of the district court of appeal and those which we have added, the judgment and order are affirmed.

Shaw, J., Sloss, J., Lorigan, J., and Angellotti, C. J., concurred.