(dissenting). I dissent from the report for reversal and vote for affirmance.
On the 22d day of July, 1926, one Brownell, who was the agent in this transaction for Colgrove, representing the Mason estate, wrote to him inclosing a check to cover principal and interest on the Alfred Josephson mortgage. The greater part of this money had come from defendant.
In this same letter Brownell asked Colgrove to make an assignment of the mortgage in question to this defendant Bessie A. Smith, and to send the paper to him and that he would get it taken over.
The next day, July 23,1926, Mr. Colgrove forwarded to Brownell the Sharp bond and mortgage, which are the subject of this controversy, together with a duly executed assignment thereof, to Bessie A. Smith, this defendant.
Colgrove delivered this bond and mortgage and the assignment to Brownell for the express purpose of delivering them to this defendant, and there were no conditions attached in any way, shape or manner.
When Colgrove sent the bond and mortgage and assignment to Brownell without any conditions or reservations attached, he constituted Brownell his agent with authority and directions to deliver the bond and mortgage and assignment to Mrs. Smith, who had previously left the money with Brownell to pay for the mortgage. Brownell failed to deliver the papers to Mrs. Smith, as he agreed and was authorized by Colgrove to do.
If Brownell never accounted to Colgrove for the moneys received from Mrs. Smith for this bond and mortgage it is Colgrove’s misfortune, but Mrs. Smith ought not to be penalized because Col-
*16grove’s agent misappropriated the money and failed to deliver to her papers which Colgrove executed and sent to him for that very purpose.
The judgment should be affirmed, with costs.
Edg-comb, J., concurs.
Judgment reversed on the law and facts, with costs, and judgment granted in favor of the plaintiff for the relief demanded in the complaint, with costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made.