Ballard

This is an action for a balance of some $200, besides interest, due on a promissory note, and to foreclose a mortgage given by the above-named defendant and his wife, also a defendant herein, to secure the payment of said note. The trial court found that the note had been entirely paid, and gave judgment for defendants. The plaintiff, contending that the finding of payment is contrary to the undisputed evidence, appeals from the judgment and from an order denying her a new trial.

The defendants Nye and his wife duly executed the note and mortgage sued on to the plaintiff. Some six months thereafter a house included in the mortgage was burned. Upon this house defendants had previously procured an insurance policy for $1,000 which policy was by indorsement thereon made payable to the plaintiff, as mortgagee,” as her interest may appear.” After the fire the insurance company adjusted the loss and allowed plaintiff $719.44 on account thereof. On the same day of this allowance Nye wrote from San Francisco to plaintiff, at Los Angeles, telling her of the allowance, and that the money was in the hands of the insurance company for her, and could not be turned over to any person but…