Burnell

The plaintiff brought this action to recover from the defendant certain money alleged to have been received by it on deposit for the use of Margaret A. Given and assigned by her to him. Judgment was rendered in his favor, and the defendant has appealed.

The following facts appear from the record: On July 25, 1896, Mrs. Given was the owner of a piece of real estate in San Francisco, which was encumbered by a deed of trust to secure an obligation of hers to the defendant, amounting to about seven thousand dollars, and which she had sold to one .Mattheas. On that day the purchaser, together with Mr. Kilpatrick, who had negotiated the sale, went to the banking-house of the defendant for the purpose of having the encumbrance discharged and closing the transaction. The amount of the purchase price to be paid was ten thousand dollars, and the purchaser’s check for this amount was delivered to an officer of the defendant, Mr. T. B. Kent, who was at his desk behind the counter and in charge thereof, with directions that the balance of the check, after deducting the amount of the indebtedness to the defendant, should be held by defendant on deposit for Mrs. Given. Mr. Kent thereupon…