Opinion,
Me. Justice Clark :At the trial of this case, the court submitted to the jury the question whether Ruhl, in the receipt and disbursement of the *615money embraced in Sergeant’s check for $4,000, dated April 4, 1882, acted as the agent of the Sepviva estate, or as the agent of Aberle, and the jury found that he was the agent of the Sepviva estate. There was some evidence, we think, to support this finding. It was certainly very slight; perhaps, however, it was sufficient to justify a submission to the jury. But, assuming the fact found by the jury, how does it appear that Aberle was injured? The loan was $4,000. Of this, Aberle received $700, at such times as he demanded it; and $3,300 was applied, according to his own directions, in satisfaction of the Rumpff mortgage. Aherle has thus received the whole of the money. He complains, however, that the loan from the Sepviva estate was effected by, and the money placed in the hands of Ruhl in March, and the Rumpff mortgage was not paid until August. But what of that ? The mortgage debt to Rumpff was $3,300, and the mortgage is satisfied. Aberle paid no part of it. He is not now responsible for any part of it. The mortgage is paid, and Ruhl paid it. It was Ruhl’s duty, doubtless, to have paid the money over to Rumpff in April, but if Rumpff was willing to forgive the fault and to accept the face of the mortgage in satisfaction of it in August, how was Aberle injured? The delay cost him nothing, and he is in no condition to complain. Ruhl promised to “ make it right,” and he did make it right with Rumpff. As the matter stands, Aberle appears to have gotten the full benefit of his loan, and he should be held to pay it in full, with interest.
The judgment is reversed.
On May 21, 1890, on motion a venire facias de novo was awarded.