Bartel v. Brown

• Decision Date: 07 November 1899
• Citation: 104 Wis. 493,80 N.W. 801
• Parties: BARTEL v. BROWN.
• Court: Wisconsin Supreme Court

104 Wis. 493

80 N.W. 801

BARTEL

v.BROWN.

Supreme Court of Wisconsin.

Nov. 7, 1899.

Syllabus by the Judge.

1. In order to establish the fact of agency for the collection of commercial paper, rendering payment, to the proper custodian of money at such agency, a discharge of the debt, possession of such paper when due and collectible, or evidence aliunde of express authority to the agent, is indispensable.

2. The mere naming in commercial paper of a place for the payment thereof, does not make the proper custodian of money at such place the agent of the owner of such paper to receive such payment.

3. If a person, relying upon the fact that a place for the payment of his note is named therein, deposit there the money to pay the same, such money will remain the property of the payor till the note actually comes into possession of the depositee for the collection thereof,so that, if in the meantime the money be lost, such loss will fall on the depositor as between him and the note holder.

Appeal from Dodge county court; J. A. Barney, Judge.

Action by William Bartel against John P. Brown. Judgment for plaintiff. Defendant appeals. Reversed.

Action to recover a statutory penalty for failure to discharge a mortgage made by plaintiff August 17, 1894, to W. T. Rambusch, to secure the payment of $1,000 with 6 per cent. interest thereon payable semiannually, the due date of the note being October 1, 1897, with a privilege of paying $500 of the principal October 1, 1896. Both principal and interest were payable at the Citizens' Bank of Juneau, Wis. The mortgage was assigned to the defendant by the mortgagee through the First National Bank of Beaver Dam, Wis., on the 17th day of March, 1896. The mortgage and assignment were duly recorded. The facts as detailed were sufficiently alleged in the complaint together with appropriate allegations to constitute a cause of action to recover the statutory penalty for wrongfully refusing to discharge a mortgage. The issue formed by the pleadings was as to whether the mortgage debt had been fully paid. The evidence showed the following facts: Rambusch was president of the bank where the note was made payable. Prior to the purchase of the note by defendant, plaintiff made one payment of interest to Rambusch. The case turned on whether Rambusch or the bank was authorized to receive payment on the note from plaintiff at the time the latter deposited the $500 at such bank. When the note became due, plaintiff, claiming credit for the $500, tendered to defendant enough more to discharge the balance of the debt, the money being at the time placed on a table during an interview between the parties, and defendant notified that it was his property but that if taken by him plaintiff would expect a satisfaction of the mortgage. Defendant took the money, declining to give such satisfaction, and plaintiff did not protest or demand a return of such money. He contented himself by insisting that the $531 was the full amount due defendant and that a satisfaction was due him. The court submitted the case to the jury for a special verdict, which resulted in findings as follows: Defendant did not notify plaintiff that he held the note and mortgage. All the conditions of the mortgage were complied with prior to the commencement of the action. W. T. Rambusch was agent of the defendant to collect the principal and interest on the note. When plaintiff made the payment to Rambusch or Hemmy, he required them to produce the note. Plaintiff is entitled to recover. There was a motion to set aside the verdict as contrary to the evidence, which was denied and the ruling duly excepted to. Judgment was rendered in plaintiff's favor and defendant appealed.

G. F. Martin and S. A. Bostwick, for appellant.

Malone & Bachhuber, for respondent.

MARSHALL, J. (after stating the facts).

The most important assignment of error presented for consideration is that the court erred in not setting aside the verdict for want of evidence to support the finding that Rambusch was defendant's agent to collect from plaintiff on the note and mortgage. The pretense on the part of respondent that such an agency existed was the basis of his cause of action. The finding to that effect was necessary to the recovery. We will notice in detail the evidence in the record upon which such finding was made. Harvey, cashier of the First National Bank of Beaver Dam, the bank through which defendant obtained the note, some time after the latter circumstance occurred and prior to the making of the disputed payment. wrote to Rambusch stating the character of the note regarding its due date, in answer to a letter asking for that information. He added a request that if Bartel expected to make the optional payment, he desired that Rambusch would let him, Harvey, know a little before. The letter does not indicate authority to Rambusch to receive payments for defendant, even if it were admitted that Harvey had authority to write the letter. The proof is positive and undisputed that he had no such authority. His authority extended no further than to answer the inquiry made by Rambusch as to the due date of the note. In compliance with Harvey's request, Rambusch wrote respondent, wording his letter so as to carry the idea that he was still the owner of the note. The language was, “If you intend to pay the $500 this fall, please let me know a couple of weeks before. It can remain longer if you wish it.” The next occurrence between the parties was September 21, 1896, several days before the option date of payment. Then respondent delivered to the Citizens' Bank of Juneau, by direction of Rambusch, who was present, $560, which the cashier placed to the credit of Rambusch. Nothing had occurred for which appellant was responsible to warrant Rambusch in assuming authority to receive the money from plaintiff or to direct the bank to receive it. There was no holding out of Rambusch, by the appellant, as his agent, no circumstance pointing that way, nor any reliance by respondent on the existence or appearance of an...