Opinion
Department One
Appeal from a judgment for the defendant, and from an order denying a new trial, in the Superior Court of Sacramento County. Clark, J.
COUNSEL
A. L. Hart, for Appellant.
Freeman & Bates, for Respondent.
OPINION
The Court:
There was a substantial conflict in the evidence, and we cannot say that the evidence did not sustain any one of the findings. Taking the widest view of the agency conferred upon plaintiff by the defendant, Ellen Wilson, mortgagee in possession, he had no authority to purchase and take an assignment of a prior mortgage, contract with the mortgagor that he should look to him for, or tack upon the prior mortgage, the amount he should expend in rebuilding the property destroyed by fire, and then assert a claim against defendant for the same amount.
This was not " taking care of her property as if it were his own." The property he was to take care of was her lien to the extent of two thousand dollars. The power is to be construed with reference to the subject-matter, and all the words used in conferring it are to be considered in ascertaining the authority conferred. He was told, in effect, " not to expend any money thereon, but apply the proceeds of the rents to the payment of her loan." It was not the duty of defendant Ellen, nor of plaintiff as her agent, to rebuild the improvements destroyed by fire, nor to make other permanent improvements, but only to make such repairs as were necessary to preserve and protect the property from ordinary wear and tear. If she had power to expend the amount received for rents in rebuilding and making permanent improvements, or even to expend more money for such purposes than the amount received for rents, he had no authority to do so much. His agency can not be construed so as to authorize him to borrow for her, of himself or anybody else, moneys to be applied in rebuilding or making new and permanent improvements. (2 Jones on Mort., § 1126, et seq.; Thomas on Mort. 83, 84; Coote on Mort. 746.) He was expressly prohibited from spending any money on the property, which must be held to be a prohibition upon the expenditure of any other money than such as the law made it her duty to expend, and to that extent, at least, the language is a limitation upon the power.
Even, however, if it be admitted that he had the power, he did not exercise it. On the contrary, the finding is that he expended the money in rebuilding, and making other permanent improvements, for his own benefit and that of the mortgagor, by whom he was to be repaid the same, with interest.
Judgment and order affirmed.