On Application nor Behearing.
The opinion of the Court was delivered by
Poché, J.Defendant’s counsel, in two able and exhaustive briefs, strenuously urge upon us the reversal of our decree in this case, and glowingly picture the great hardships inflicted on their clients by the judgment rendered.
We have carefully perused a second time the voluminous evidence in the record, and we have failed to find any testimony showing conclusively that Mrs. Murphy was legally represented in the matters of the bankruptcy proceedings, the adjudication a't the trustees’ sale and the subsequent sale to the Factors’ and Traders’ Insurance Company, and that, therefore, she was bound by any of these transactions.
But in their briefs for rehearing, defendants’ counsel press the following proposition which they support with great force and cogent reasoning: That the Murphy notes being endorsed in blank, and being secured by mortgage to enure to the benefit' of any and all future holders of the said notes, and being in the possession of Marshall J. Smith & Co. during all these transactions, are facts which justified third parties in treating with the holders of the notes, to consider them as owners thereof. And hence they conclude that for the purposes of the issue in this case, it is a matter of indifference whether Marshall J. Smith & Co-were the agents of others dr not in various transactions referred to.
It is evident that in their zeal for argument counsel have entirely lost sight of their pleadings by which, at least, they must be bound.
Their answer rests exclusively upon the alleged theory that Mrs. Murphy was bound by the acts of Marshall J. Smith .& Co., her duly authorized agents and attorneys in fact, having, as such, the exclusive possession, management and control of her said mortgage notes, and stipulating in her behalf in all the transactions covered in the issues of this case. All the testimony which they offered and introduced on that point, was intended for the sole purpose of establishing the agency of Marshall J. Smith & Co. touching the two notes, which were through the pleadings and throughout the trial recognized and treated as the property of Mrs. Murphy.
We transcribe from their answer the following averment out of many similar allegations on this point:
*466“ Defendants aver that the two notes of plaintiff herein were and had been in the possession of Marshall J. Smith & Co., or of Marshall J. Smith individually, who had been for a long time, and was at the date of these transactions, the only qualified attorney in. fact oí Mrs. Murphy.”
Under such an allegation defendants could not have been allowed to show by evidence that the notes bad been treated as the property oí Marshall J. Smith & Co., and much less can they now be tolerated in their attempt to shift their position in the last engagement of this protracted conflict.
We find no error in our decree, and the application for rehearing must be denied.