Page:North Dakota Reports (vol. 2).pdf/226

 Mrs. Roberts did not look at the notes, but assumed that the matter was allright. Neither she nor her husband knew that the note in suit was not in the package until after this action was commenced. It is urged that by her conduct in accepting the package of notes as paid by the loan she ratified this, the creditor's application of the money by the creditor, and that she cannot now be heard to assert the contrary. This reasoning assumes that she accepted these notes and assented that the note in suit should not be included. She in fact said nothing of the kind. Norcan she be held to haveconsented to this change as a matter of law. The plaintiff, in view of the finding of the jury, had been informed that the note sued upon must be paid out of this loan. When the cashier handed her the package of notes, stating that they were the notes which the loan was made to pay, his statement was not true, so far as that particular note was concerned. We do not say that there was conscious falsehood on the part of Mr. Lyon. He may not have thought anything about the direction given by Mr. Roberts to pay that note out of the loan. But certainly Mrs. Roberts might rely on the statement; and that, in the light of the original direction, was an affirmation by the plaintiff that the note in question was in the package. The plaintiff cannot raise up an estoppel out of defendant’s reliance upon the representation of one of its own officers. We find nothing in the authorities cited opposed to our view. The one most relied on is not at all in point. Flarsheim v. Brestrup, 43 Minn. 298, 45 N. W. Rep. 438. The syllabus accurately states the decision: “After acquiescing in the application of a payment in extinguishing one demand, and accepting the benefit of it for that purpose, a debtor cannnotcannot [sic] avail himself of the same fund to extinguish another demand, although when he made the payment he directed its application to the latter.” The vital element of acquiescence in the new application by the creditor of the payment is wanting inthiscase. Therecould benoaquiescence before suit, for neither the defendant nor her nusband had any knowledge of the fact until after the action had been brought. We will not charge this innocent defendant with constructive notice of a fact where the conduct of the plainitff in wrapping up the notes so they would not be readily seen (without, we believe,