On petition for a rehearing by plaintiff and appellant, it is urgently insisted that the items of evidence set out in the opinion of this court filed herein are not legally sufficient to sustain the findings of the trial court that the Pacific Coast Savings Society was the duly appointed agent of the plaintiff to collect the sums due on the note and mortgage sued upon.
Upon the hearing of this case in this court no argument, either oral or written, was made by the respondents' attorneys, nor have they filed any in reply to the petition for a *Page 14 rehearing, so that, in a case of apparently much importance to the respondents, we have been furnished no assistance by their counsel.
However, we have re-examined the record, and adhere to the views expressed in our opinion affirming the judgment.
We are satisfied that there is sufficient competent evidence in the record, or evidence received without objection, to warrant the conclusion that the Pacific Coast Savings Society was the duly appointed agent of the plaintiff to collect the sums of money here sought to be recovered. The very deed of trust, by the terms of which the assignment of the mortgage was made to plaintiff, provided that said plaintiff should execute a power of attorney to said society for that purpose, which power was only to be revoked in certain contingencies. The course of conduct of the plaintiff throughout is entirely consistent with this having been done, and is utterly inconsistent with its not having been done. The evidence shows that for many years the plaintiff permitted payments, which by the terms of the note and mortgage were to be made monthly, to be so made to the said society. It further shows that it recognized as valid and effectual payments made by one of the same defendants to the same society upon another mortgage, executed by him, and assigned to the plaintiff by the very same instrument and covered by the same deed of trust forming the basis of the plaintiff's rights here — a mortgage in exactly the same position with regard to the rights of the parties as the one now in suit.
While no single item of the evidence received would be sufficient to prove the agency of the society, yet a consideration of the entire evidence in the case irresistibly forces the mind to the conclusion that the obligation of the plaintiff to appoint said society as its agent for the collection of the sums due under this note and mortgage, had in fact been performed.
The petition for a rehearing is denied.
Hall, J., and Lennon, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 26, 1912. *Page 15