MCKEE, J. The defendant in this action was convicted of embezzlement. He appeals from the judgment and an order denying his motion for a new trial. The motion for a new trial was made upon the grounds that the verdict was against the evidence and contrary to law, and that the court, against the objections and exceptions of the defendant, erred in matters of law at the trial, and in its instructions to the jury. As laid in the information, the charge is that on the twelfth of December, 1883, the defendant was "agent and servant" of Carl Haneke, and in that capacity received for his principal, in trust for him, the sum of $2,102.60, lawful money of the United States, which afterwards, on the fifteenth of August, 1884, in violation of his trust, he fraudulently and feloniously converted, appropriated, and embezzled.

Upon the first ground-that the verdict was against evidence and contrary to law-it is contended that there was no evidence establishing, or tending to establish, the allegation, as laid in the information, that the money charged to have been embezzled came into the hands. of the defendant by virtue of his trust as the servant and agent of Haneke. But admittedly, at the time of the transactions upon which the charge was founded, the defendant was a practicing attorney at law in the town of Woodland, in Yolo county; and on the twelfth of December, 1883, he received from Isaac Quinn $2,102.60 in payment. of a promissory note and mortgage which Quinn had given to Carl Haneke as security for the payment of the purchase money due by him for a tract of land which he had beforehand purchased from Haneke; and upon receiving the money he gave Quinn a receipt for the same, worded as follows:

"$2,102.61

WOODLAND, CAL., December 12, 1883. "Received of Isaac Quinn twenty-one hundred and two dollars, to be applied in payment of his note of March 26, 1881, to Carl Haneke.

"W. B. TREADWELL."

There is no question but that the money was received in payment of Quinn's note to Haneke, and if the defendant received it as the agent of Haneke, he, as an attorney at law, must have known that the law imposed upon him the duty of paying it over immediately to the person for whom he received it. But the evidence, without conflict, shows that he failed to inform Haneke of the payment of the note; that he concealed from him the fact of its payment; that he kept the money; and, as he confessed, used it for his own purposes. Upon those facts, if they were all the facts in the case, the verdict of embezzlement would be fully warranted.

But it was and is insisted that at the time the defendant received the money he was not, in fact or law, acting as the "agent and servant" of Haneke, and did not receive the money for him; but that he received it for a Mrs. Wise, to whom the note upon which the money was paid belonged, and that she authorized him to keep the money

for her. The evidence showed that Mrs. Wise was the daughter of Haneke, and it tended to show that she had advanced to her father the greater portion of the money for which the note collected by the defendant was given, and that her father, at a time when he was sick and expected to die, indorsed the note to her, so that she might receive and receipt for the moneys which were payable upon it; that she informed the defendant, as her father's agent for the collection of the note, of the indorsement, and communicated with him in that capacity. Admittedly, it was also proved that Haneke had retained. and employed the defendant in the year 1880 to collect the principal and interest of a note and mortgage upon a tract of land which had been sold to Quinn, the maker of the note; that the land, at the time of the sale, was subject to a trust deed in the nature of a mortgage, to secure an indebtedness due by a former owner of the land to the Sacramento Bank; that Quinn bought and entered upon the land as purchaser, subject to the trust deed; and that while his note and mortgage were in the hands of defendant for collection, Quinn was. unable to pay his own note, or the indebtedness to the bank, and the bank was about to sell the land under its trust deed unless payment of its demand was forthcoming. In that condition, Haneke, upon the advice and by the services of his attorney,-the defendant,-redeemed the land by paying the bank its demand. The bank reconveyed the land to him, and Quinn, by agreement with him, substituted for his note and mortgage a new note and mortgage trust deed, covering the principal sum of his old note and the amount of money which Haneke had paid for redemption. This substituted note was as follows:

"$2,450.

WOODLAND, YOLO CO., CAL., March 26, 1881.

"Three years after date, for value received, I promise to pay to the order of Carl Haneke, at the Bank of California, in the city and county of San Francisco, state of California, the sum of two thousand four hundred and fifty dollars in gold coin of the United States of America, with interest thereon, in like gold coin, at the rate of one per cent. per month from date until paid. Interest to be paid every three months, and if not so paid to be added to and become a part of the principal, and draw like interest; and in case said interest be not paid every three months, this note to be collectible at the option of the holder."

The new note and trust deed were delivered, and after the latter was recorded the old mortgage was released and returned to Quinn; but Haneke retained possession of the old note until Quinn paid a balance of interest due upon it, which was not carried into the new note. The redemption by Haneke and the novation by Quinn were brought about by the services of the defendant. He drafted and supervised the execution and delivery of all the papers required to clothe the transaction with the forms of law. For those services Haneke paid him on the day the transactions were closed, and that payment, it is insisted, ended the defendant's agency, or, as he expresses it in his testimony, given as a witness in his own behalf: "My employment

ceased on the day when the deed of trust was drawn, and it was so stated at the time to the parties."

No doubt, when a person is employed to render special services as agent for another, his agency ceases with performance of the services and payment of compensation therefor. Civil Code, § 2355. Between such persons there exists no longer the relation of principal and agent, unless there is an express understanding between them, or it may be implied from their subsequent acts and conduct that the person who acted in the original transactions upon the retainer and employment of the other continued to act in the same capacity in other matters arising out of the original transactions. Whether the defendant continued to act for Haneke after payment for his past services, in collecting for him the interest and principal of the new note, was therefore a question for the jury. Upon that question there was a conflict of evidence. The jury found against the defendant, and there was abundant evidence to sustain the verdict; for it was proved that both the old and the new notes of Quinn were left by Haneke in the hands of the defendant, with authority to collect the interest due upon the old, and to forward the new to the Bank of California to be deposited, where, upon payment by Quinn of the interest, or any part of the principal, as it became due, the moneys were to be forwarded on account of Haneke. Under that authority the defendant forwarded the new note, and the first installment of interest paid upon it, accompanied with a letter, as follows:

"WOODLAND, CAL., June 24, 1881. "Bank of California: I herewith inclose note of Isaac Quinn, payable to order of Carl Haneke, (516 Filbert St., S. F.,) to be held by you for collection; also check for seventy-three dollars and fifty cents, payable to the order of Carl Haneke, forwarded by Mr. Quinn in payment of first installment of interest. I have notified Mr. Haneke of the forwarding of same,. Please acknowledge receipt.

"Yours,

W. B. TREADwell.

"Any communication for Mr. Quinn may be addressed to my care at Woodland, Cal."

And on the twenty-fourth of September, 1881, he collected the old note, and gave Quinn his receipt, as follows:

"$62.18. WOODLAND, CAL., September 24, 1881. “Received of Isaac Quinn, sixty-two dollars and eighteen cents, in full for balance due on promissory note, date of August 15, 1877, for $2.450.

"CARL HENEKE.

"Per W. B. TREADWELL."

Thereafter, with one or two exceptions, when he requested another to act for him in his absence from Woodland, he continued to receive from Quinn, upon the new note, the interest as it became due, and also part of the principal, which he forwarded regularly to the Bank of California on account of Haneke; and this course of dealing was continued until the collection of the note in December, 1883. Admit

tedly, at that time, the defendant was not acting as the agent or servant of Quinn. He himself testified: "I was not representing Mr. Quinn at all. I was never the agent of Mr. Quinn at any time in the world. I did not assume to be Quinn's agent in taking his money." And to the question, "How came you to take the money?" he answered: "I took it as the agent of Mrs. Wise." Whether the defendant took the money as the agent of Mrs. Wise or of Haneke was therefore squarely in issue.

To maintain the issue on his part the defendant gave in evidence a letter, of which the following is a copy:

"SAN FRANCISCO, March 27, 1883.

"Mr. W. B. Treadwell-DEAR SIR: During my father's recent dangerous illness he deemed it advisable to arrange business matters to his satisfaction. He therefore indorsed and assigned the promissory note of the trust deed to me, and consequently I shall sign all receipts for interest or money sent as payment on note hereafter; the trustees have been duly notified of the change. Will you have the kindness to inform Mr. Quinn of the fact, and request him, when he forwards interest again, to have the check at the bank made payable to me. Father is much better, but being over eighty years of age he does not feel able to have the cares of business thrust upon him.

"Hoping these few lines may find your family in good health, I remain, "Yours, truly, HARRIET A. WISE."

But in connection with that letter there was given evidence tending to prove that the note was made up of two sums, viz., $1,650 and $800, the first of which had been advanced by the daughter to her father to enable him to redeem the land, and the second was what Quinn owed her father on the land, on the old note, and mortgage; that with the interest of these two sums of money the daughter supported herself and father, for she was an invalid, and her father was very old and infirm; so that when he became disabled by sickness from going to the bank to get his interest as it was forwarded for him by the defendant, she undertook the business, and recognizing that the defendant was her father's attorney and agent for that purpose, she communicated with him in that capacity. The indorsement of the note, in the circumstances disclosed by her letter, did not have the effect of disturbing the legal relation between Haneke and the defendant, or of revoking any authority he had to receive and forward the money; and, in fact, he did receive and forward as usual all payments made on the note until the twelfth of December, 1883, when Quinn paid him in full the amount of principal and interest due upon the note.

As a witness in his own behalf, the defendant says in his evidence that Mrs. Wise knew that he had collected the note; that at her request he concealed the fact from her father, and agreed to keep possession of the money until such time as either of them could safely reinvest it so as to make it interest-bearing for her father's support; and that, in the mean time, he should continue to forward the interest as it would become due, so as to keep up the appearance of nonpayment. But the evidence of his letters and conduct and acts dis

proved such an arrangement. It is clearly deducible from his own testimony he knew that Mrs. Wise, notwithstanding the indorsement of the note, had given full control over it to her father after recovery from his sickness, and that she recognized the defendant as her father's attorney and agent for its collection. Admittedly, after defendant received the money, he never personally spoke to or saw Mrs. Wise. In March, 1884, she fell sick of an incurable disease, and was taken to the German Hospital in San Francisco, where she lingered until October of that year and died. He says in his testimony that he corresponded with her upon the subject of the money. Not a scrap of writing from her corroborating his statement was, however, produced. He claimed that her letters to him were lost, but neither was there found among the papers of Mrs. Wise, after her death, any letters from him.

Evidently, from his own testimony, he purposely concealed the payment of the note from Haneke and his daughter. Both were

wholly ignorant of the fact, and when the first quarterly interest on the note for the year 1884 would have become due and payable if the note had not been paid, they became anxious about it, because it was not forwarded to the bank, and in their distress they got a lawyer to write about the interest to the defendant, who in reply wrote as follows:

"WOODLAND, April 7, 1884.

"A. Morgenthal, Esq.-DEAR SIR: Yours of the fifth inst. at hand. When I telegraphed to you the other day I supposed that I could see Mr. Quinn by Thursday, but I found that he was away and out of the reach of letters. I suppose he has made a mistake as to the date. I have sent the amount today to the Bank of California out of my own money, as I know Mr. Quinn is all right. Please present my compliments to Mrs. Wise and Mr. Haneke, and tell them I will look out for the matter myself hereafter.

"Truly yours,

W. B. TREADWELL."

But the defendant did not forward the next quarterly interest which would have become due, and Haneke and his daughter caused a letter to be written to Quinn himself, threatening him to call in the principal of the note if he did not continue to pay the interest promptly; in answer to which Quinn wrote them in July, 1884, that he had paid the note in full to their attorney seven months before; and then, for the first time, the unspoken secret of the defendant was made known to Haneke and his daughter.

The evidence is overwhelming that Quinn, when he paid his moneys upon the note, acted with the defendant as the attorney and agent of Haneke for the purpose of receiving and forwarding them to Haneke. He so understood it from Haneke and the defendant himself. He knew nothing of the indorsement of the note to Mrs. Wise, for the defendant had not informed him. The defendant was therefore, when he received the money from Quinn, in fact the agent, or acting as the agent, of Haneke, and he is estopped in law from denying that he was the agent. "In reason," says Bishop, in his work