after stating the facts. The main question presented by the appeal is that concerning the ownership of the Willoughby notes. The plaintiff, W. PI. Sallinger, *38administrator of B. Sallinger, contends that upon the payment of the balance due upon the note of $1,000 executed by his intestate and the other plaintiff, K. Sallinger, to J. W. Perry & Co., the Willoughby notes belonged to him as administrator of B. Sallinger. There was evidence, uncontradicted, to the effect that B. Sallinger, at the time of her death and at the time of the trial, was indebted to other persons than J. W. Perry & Co.
The plaintiffs introduced evidence tending to show that J. C. Willoughby bought a tract of land belonging to the plaintiff’s intestate, and, by mistake of the draftsman, executed his nine promissory notes, each in the sum of $92.45, to K. Sallinger instead of to B. Sallinger, the owner of the land; that upon discovering the mistake, K. Sallinger endorsed the notes in blank and put them in the safe of B. Sal-linger & Co. The jury found upon the issue (No. 5), “To whom did the Willoughby notes belong at the time they were assigned to J. W. Perry & Co. ?” that the notes belonged to B. Sallinger.
On the fifth issue the defendant Perry, through his counsel, requested several special prayers for instructions, the purpose of one of which was that the law required that the jury must be satisfied and convinced by the evidence that the Willoughby notes were made payable to K. Sallinger by the mutual mistake of himself and his wife; otherwise they should answer the issue, “K. Sallinger”; another, that the presumption of law that the notes were the property of the payee could not be rebutted by the unsupported evidence of H. Sallinger that they were executed to him by mistake, and that the issue should be answered “K. Sallinger”; another, “that when the plaintiff seeks to have the J. E. Willoughby notes and mortgage in question reformed, or a trust declared, for mistake in the draftsman for the same evidence to establish such equity or right, being merely parol, it should be received by the jury *39with great caution, and tbe jury should look anxiously for some corroborating facts and circumstances in support of it; and in a case of this nature the claimant in opposition to the legal title should not delay the ascertainment of his right, as a stale claim would merit but little attention, and unless you are convinced by clear and convincing proof of such right, you should answer the issue ‘K. Sallinger.’ ” Iiis Honor refused these instructions, but charged the jury: “That the burden of proof on the fifth issue is on the plaintiff. The quantam of proof required is different from that required on the fourth issue. Before you can answer the fifth issue ‘Yes,’ the plaintiff must establish the affirmative of the issue by evidence that is clear, strong and convincing. In this case there is no evidence that Bettie Sallinger, if she was the owner of the Willoughby notes, ever parted with her interest in these notes before they were transferred to Berry, except that they were made payable to IL Sallinger.”
The Court also charged on this issue: “If you are thoroughly satisfied from the evidence that the draftsman of the Willoughby notes made a mistake in drawing them — that is, that it was intended that said notes should be made payable to Bettie Sallinger, but that by the mistake of the draftsman they were made payable to K. Sallinger — you should answer tire fifth issue ‘B. Sallinger,’ but otherwise you should answer it ‘K. Sallinger.’ ”
We see no error in the refusal of his Honor to grant the prayers of the defendant Berry, or in the instructions which he gave on the fifth issue. It would have been better if his Honor had said to the jury that before they could answer the fifth issue “B. Sallinger” the plaintiff must establish, by evidence clear, strong and convincing, that the notes were hers at the time they were assigned to J. W. Berry & Co. But there is no douht that the jury understood his meaning, and the defendant has not been prejudiced.
*40The Willoughby notes, then, having been found to be the property of B. Sallinger, the sale of seven of them under the attachment proceedings in Norfolk, Va., as the property of E. Sallinger was void, and they belong, therefore, to W. H. Sallinger, the plaintiff administrator of B. Sallinger, to be used in the due course of administration of her estate.
Erom our view of the case, it is unnecessary to discuss the questions raised on the appeal in connection with the shipment of the peanuts by Sallinger to the J. W. Perry Company and the application of the proceeds of their sale by said company. The jury found that tire peanuts were received by II. Sallinger from Willoughby as a payment on his notes. That being so, by operation of law the value of the peanuts, $211.38, whatever became of them afterwards, was a credit upon the $1,000 note, for by the evidence of both II. Sallin-ger and Perry, Sallinger was the agent of Perry to collect the two Willoughby notes which first fell due; and, also, in the answer of Perry, he admits that he sent the two notes to Sal-linger to collect from Willoughby. If, however, it be true, as Perry averred in his answer, that Sallinger collected, in money, the two Willoughby notes and failed to pay the proceeds over to him, he (Perry) is, in law, in no better position than if Sallinger had received the peanuts from Willoughby in payment of tire two notes, as the jury have found. He (Sallinger) would have been an unfaithful agent, for whose act the principal (Perry) was responsible. A payment in money to Sallinger by Willoughby would have been a payment to I. W. Perry, and that payment belonged, by force of law, upon the $1,000 note.
We have examined carefully the other exceptions on matters of evidence, and we see no merit in them.
The judgment of the Court below is Affirmed.