Miller v. Wilson

Decision Date22 December 1894
Citation28 S.W. 640,126 Mo. 48
PartiesMiller et al. v. Wilson, Administrator, Appellant
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court. -- Hon. J. W. Henry, Judge.

Affirmed.

""Karnes Holmes & Krauthoff for appellant.

(1) Plaintiff Miller was not a competent witness. R. S. 1889 sec. 8918; ""Randall v. Randall, 64 Vt. 419. (2) Under the evidence defendant was entitled to a decree dismissing the petition. (3) The evidence does not support the basic allegation of the petition that Hall made an arrangement with Towne to collect the money as it became due from the plaintiffs for Cochran, and that said money, when so collected, should be payments on said Towne notes, and that Cochran was fully informed of said arrangements and sanctioned and ratified the same.

""J. W. Jenkins for respondents.

(1) Hall was the agent of both Cochran and L. W. Towne. The testimony shows that he acted as such and that they both with a full knowledge of all the facts, adopted and ratified every act, except embezzling their money and absconding. As to appointment, see Mechem on Agency (1889), sec. 81; as to ratification, see ""Ibid., sec. 146; as to estoppel, see ""Ibid., sec. 84. (2) Mrs. Miller was a competent witness. The transactions to which she testified were all had with Hall, the trustee and agent of Cochran. ""Orr v. Rode, 101 Mo. 387; ""Ward v. Ward, 37 Mich. 253. (3) Cochran's conduct, throughout the whole of these transactions, estops the defendant from denying that Hall was authorized to receive the money for Cochran. The trial court found the facts in favor of the plaintiffs, and the finding is sustained by the evidence, and this case is clearly within the rule where this court will not disturb the finding of the trial court.

OPINION

Macfarlane, J.

The suit is in equity to cancel and declare satisfied a certain deed of trust, which will be more particularly described.

On the first day of September, 1886, one Samuel Cochran sold and conveyed to L. W. Towne lots 119, 120, 121 and 122 in Garfield Park, in Kansas City. To secure two notes each for $ 387, a part of the purchase price, the said Towne executed and delivered to the said Cochran a deed of trust on said lots, which was duly recorded.

On the nineteenth of October, 1886, Towne sold and by deed of general warranty, conveyed said lots 120, 121 and 122 to plaintiff, Maria E. Miller, and took back from her a deed of trust to secure two notes for $ 400 each, a part of the purchase price. On the same day the said Towne sold, and by general warranty deed conveyed, lot 119 to the two plaintiffs, jointly, and took back a deed of trust from them on the same lot to secure two notes for $ 125 each, a part of the purchase price of the lot. Neither of these plaintiffs at the time had actual knowledge of the prior deed of trust on the same lots given by Towne to Cochran.

Both these sales were made by one W. T. Hall as agent for the vendors. The notes given by plaintiffs were placed by Towne in the hands of the said Hall as agent with authority to collect them when due, and instructions to apply the collections made in payment of his notes to Cochran and in satisfaction of the prior deed of trust. Plaintiffs afterwards learned of the prior deed of trust, but were at the same time advised of the instructions given to Hall and were satisfied. Plaintiffs paid to Hall under this arrangement, at different times, sums aggregating $ 869. With the money so collected Hall paid one of the notes due Cochran, but neglected to pay the other. Cochran died in November, 1889, and defendant, Wilson, is his administrator.

Subsequent to the death of Cochran plaintiffs paid Hall $ 50, which amount was paid over to defendant and credited on the remaining $ 387 note. This is the only credit on said note, and defendant, as administrator of Cochran, holds the note and claims the security of the prior deed of trust. The truth of these facts is not contested.

Plaintiffs claim that the note is paid in full, and that they are entitled to have the deed of trust satisfied for the reason, as they charge in their petition:

"That said Hall was the duly authorized agent of said Cochran to collect the purchase price of said lots from said Towne, and of the said Towne to collect the said notes due from the plaintiffs. That at the time of the said sale to these plaintiffs, the said Hall (as these plaintiffs have since learned) made an arrangement with said Towne to collect the money as it became due from the plaintiffs, for the said Cochran, and that said money when so collected should be payments on the said Towne notes. That said Cochran was fully informed of said arrangements and sanctioned and ratified the same, and the payments subsequently made by these plaintiffs to the said Hall were so applied to the payment of the first of said Towne notes and the same was surrendered to said Towne by said Hall (as these plaintiffs have been since informed)."

Defendant by answer admitted that he was administrator of Cochran as charged, but denied all other allegations of the petition.

The court found the issues for plaintiffs and entered a decree satisfying the deed of trust, and defendant appealed.

It will be readily seen that the only issue of fact to be determined is whether Cochran was a party to, or acquiesced in, the arrangement between Towne and his agent Hall, that the money collected from plaintiffs by Hall should be credited upon the notes from Towne to Cochran. Defendant insists that there was no sufficient evidence to establish that fact.

It is undoubtedly true, as contended by counsel, that no agreement made between the plaintiffs, Towne and Hall would be binding on Cochran, unless he affirmatively agreed that Hall should receive the payments from plaintiffs for him, as payment on the notes he held against Towne. The other parties had no power, without his consent, to substitute one debtor for another. Mere knowledge of the arrangement and receipt of the money when collected, and a credit thereof on the Towne note would not alone bind him to the arrangement or estop him to deny it. It was a matter of indifference to him how Towne raised the money with which to discharge the deed of trust. He had the right to retain his security until his debt was paid. If, on the other hand, he agreed that the money paid to Hall by plaintiff should be received for him then plaintiffs would be entitled to have it applied in satisfaction of the deed of trust. If he so agreed Hall became his agent, and, as between himself and plaintiffs, a payment to his agent would be equivalent to a payment to himself.

The evidence offered in proof of the agency should be considered and weighed in the light of all the circumstances surrounding the parties and their business relationship to each other. It appears that Hall was a real estate agent, and through him the sale by Cochran to Towne was effected. He was also trustee in the deed of trust from Towne to Cochran. He was consulted by Cochran about business matters. He did not charge Cochran full commissions for making...

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