Bacot v. South Carolina Loan & Trust Co.

• Decision Date: 10 April 1925
• Docket Number: 11742.
• Citation: 127 S.E. 562,132 S.C. 340
• Parties: BACOT v. SOUTH CAROLINA LOAN & TRUST CO.
• Court: South Carolina Supreme Court

127 S.E. 562

132 S.C. 340

BACOT v. SOUTH CAROLINA LOAN & TRUST CO.

No. 11742.

Supreme Court of South Carolina

April 10, 1925

Appeal from Common Pleas Circuit Court of Charleston County; J Henry Johnson, Judge.

Action by Thomas N. Bacot against the South Carolina Loan & Trust Company, as administrator of Eugene Opdebeeck. From a decree for defendant, plaintiff appeals. Affirmed.

Lee Royall, of Charleston, for appellant.

Buist & Buist, of Charleston, for respondent.

MARION J.

Action by the plaintiff, Bacot, to enforce satisfaction of a mortgage, alleged to have been discharged by payment and tender of payment, and for recovery of the statutory penalty provided by section 5225, vol. 3, Code 1922. The defendant denied that the mortgage debt had been paid, alleged breach of the conditions of the mortgage, and prayed foreclosure. From a decree of the circuit court, confirming the master's report in favor of the defendant, the plaintiff appeals.

A. A Kroeg, referred to in the arguments of counsel as an attorney and dealer in insurance and in bonds and mortgages, arranged a loan of $1,100 from C. L. A. Jagar to Thomas Bacot evidenced and secured by a bond and real estate mortgage, dated March 5, 1919. Thereafter, on January 10, 1920, Jagar sold and assigned the bond and mortgage to Eugene Opdebeeck, who paid therefor the sum of $1,100. Prior to the assignment to Opdebeeck, and subsequently thereto, Bacot paid to Kroeg amounts, aggregating $1,061.43, of which the sum of $180 was paid prior to the assignment by Jagar to Opdebeeck. Kroeg paid to the owners of the bond and mortgage interest on the full principal of the bond, between June 10, 1919, and January 17, 1922; but no part of the principal received by him was paid either to Jagar or to Opdebeeck. Kroeg died, and both the plaintiff and Opdebeeck appear to have filed claims against his estate on account of the sums paid to him on account of the bond. At the trial Opdebeeck testified that in the matter of the assignment of the bond and mortgage Kroeg "made the loan for" him, but that he had never authorized "any one to collect payment on the principal." There was evidence tending to establish that Kroeg had made 11 other loans for Opdebeeck. It does not appear that at the times the various payments were made by Bacot, through his agent, to Kroeg, or at any time after the execution and delivery thereof, Kroeg had possession of the bond and mortgage, nor does it appear that Bacot ever received notice of the assignment to Opdebeeck.

All of the appellant's exceptions, save one, are directed to the contention that, in the state of facts above set out, the Circuit Court committed error of law in sustaining the master's finding of fact that Kroeg was not the agent of Opdebeeck in receiving from Bacot "payments on account of his bond." That contention, as we interpret counsel's argument, is rested upon the doctrine of implied authority; that is, that the authority of Kroeg to collect the payments on the bond is to be implied from the previous course of dealing between the parties, or from such conduct on the part of Opdebeeck as will under the circumstances work against him an equitable estoppel. 2 C.J. 576, § 218.

Granting that a question of implied authority is to be determined from no one fact, but from all the facts and circumstances for which the principal is responsible, and that, under all the facts and circumstances of this case, a finding of fact that Kroeg had implied authority might possibly have been warranted, a contrary concurrent finding of fact by the master and circuit judge cannot be held erroneous as a matter of law. The only facts tending to establish that Kroeg was actually the agent of Opdebeeck and from which his authority to act for Opdebeeck in collecting the principal of the bond could be implied, were the facts that he represented Opdebeeck in making this and other loans and acted for him in receiving the interest from the mortgagor. That those facts do not as a matter of law require the conclusion that Kroeg had implied authority to collect the principal of the loan is well settled.

"The fact that an agent makes or negotiates the contract, such as the negotiation of a loan, gives him no implied authority to receive payment thereunder, unless he has possession of the evidence of indebtedness." 2 C.J. 621, § 258. "The fact that an agent is authorized to receive installments of interest as they become due on a note or other obligation does not give him implied power to collect the principal," etc. 2 C.J. 621, § 257.

In the recent case of Morris v. Carlisle (S. C.) 122 S.E. 511, where a bank, through its president, Holleman, sold and assigned a note and mortgage to Miss Morris, and Holleman had thereafter collected the interest for Miss Morris, Carlisle, the mortgagor, also paid or claimed to have paid the principal to Holleman. In reversing a finding of the circuit court that Miss Morris was bound by the acts of Holleman as her agent in collecting the principal, this court (Mr. Justice Fraser) said:

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