Wheeler v. Benton

• Citation: 67 Minn. 293,69 N.W. 927
• Parties: WHEELER v BENTON.
• Decision Date: 22 January 1897
• Court: Supreme Court of Minnesota (US)

67 Minn. 293

69 N.W. 927

WHEELERvBENTON.

Supreme Court of Minnesota.

Jan. 22, 1897.

(Syllabus by the Court.)

1. A long course of dealing by an agent for his principal, during which his acts had never in any manner been repudiated by the latter, held to raise a presumption that the agent had actual authority to do what was done by him in line with such course of dealing.

2. The principal is dead. The agent is the husband of plaintiff, and, under the statute, cannot, without her consent, be called by defendant to testify, but can be called by her. There was no direct testimony in the case that the agent had authority to bind his principal by the acts in question. Plaintiff failed to call said agent, and failed to offer any evidence to show want of authority in the agent. Held, under all the circumstances, it must be presumed that the agent had authority, or that the principal subsequently ratified his acts, and the court below erred in finding against this presumption.

Appeal from district court, Hennepin county; Henry C. Belden, Judge.

Action by Frances S. Wheeler against John D. Benton. Finding for plaintiff. From an order denying a new trial, defendant appeals. Reversed.

Wilson & Van Derlip, for appellant.

M. P. Brewer, for respondent.

CANTY, J.

Defendant is the maker of the promissory note in suit, which is dated April 22, 1887, due three years from date, for the sum of $4,200, and payable to the order of one Betts, who in January, 1888, indorsed and delivered it to one Henry L. Knowles, a resident of the state of New York. Knowles died in 1892, and the note was acquired by plaintiff, his daughter, as a part of her share of his estate. On the trial before the court without a jury, the court found for plaintiff, and from an order denying a new trial defendant appeals.

The court finds that coupons were attached to the note for each semiannual installment of interest during the three years; that, as these coupon notes fell due from time to time, they were presented for payment by one Wheeler, who resided at Minneapolis, and was the husband of plaintiff, and son-in-law of Knowles; that he received payment of each coupon as it fell due, and surrendered it; that the principal note and coupons were secured by a mortgage on certain real estate, owned by defendant; that in November, 1888, he conveyed the real estate to one King, who, in consideration thereof, “and with the knowledge and consent of Wheeler,” assumed and agreed to pay the mortgage indebtedness, and thereafter Wheeler presented the coupons to King, and received payment of the same from him. The court further finds that, at the maturity of the principal note, in April, 1890, Wheeler and King agreed that the time of payment should be extended for six months, and in consideration thereof King agreed to pay interest on the indebtedness during that time at the rate of 8 per cent. per annum, which he paid to Wheeler at the end of that time; that Wheeler and King then agreed that the payment of the note should be again extended for another period of six months, and, in consideration thereof, King agreed to pay interest on said indebtedness at the same rate during that time; and that defendant never knew of or consented to either of these extensions. It is further found that King never paid the interest at the end of said second extension, and that no interest has ever been paid on the note since. The court further finds: “(15) Neither said Henry L. Knowles nor the plaintiff in said action at any time took any action with reference to said note to the knowledge of defendant or of said King; or communicated to defendant or said King, or the agent or the representative of either of them, the fact of their respective interests in said note; or in anywise communicated to or notified the defendant or said King of their ownership of said note or mortgage, or of either; but said Charles H. Wheeler was the only person who, to the knowledge of defendant or said King, ever exercised or assumed to have any authority or control of said note and mortgage after the 22d day of April, 1888, until the...