Bell v. Riggs

• Decision Date: 25 June 1912
• Docket Number: Case Number: 1704
• Citation: 1912 OK 446,34 Okla. 834,127 P. 427
• Parties: BELL et al. v. RIGGS et ux.
• Court: Oklahoma Supreme Court

1912 OK 446

127 P. 427

34 Okla. 834

BELL et al. v. RIGGS et ux.

Case Number: 1704

Supreme Court of Oklahoma

Decided: June 25, 1912

Syllabus

¶0 1. BROKERS--Agency for Corporation and Person Dealing With It--Procuring Loan. Scott E. Winne was the active member of the partnership of Winne & Winne, and was also president and manager of the Winne Mortgage Company. Riggs and wife made application to the Winne Mortgage Company for a loan, and the application contained the statement that Winne & Winne were appointed their agent to obtain the loan. Riggs and wife signed a separate instrument to the same effect. Held, that Winne & Winne were in fact acting for the Winne Mortgage Company, and that Riggs and wife were not chargeable with the loan until it has been paid or tendered them, and that a payment of the amount of the loan by the Winne Mortgage Company to Winne & Winne was not a payment to Riggs and wife.

2. BILLS AND NOTES--Negotiability--What Law Governs. Where a mortgage on land in Oklahoma, given to secure a note payable in Kansas, provided that both note and mortgage should be governed and construed according to the laws of Oklahoma Territory, the question of the negotiability of the note will be determined by the same rule as if it had been both executed and payable in Oklahoma Territory.

3. SAME--Note Becoming Due on Default. A note executed in 1905, otherwise negotiable in form, contained the following clause: "Interest coupons are hereto attached representing the interest from date to maturity, which with this principal note are secured by a mortgage deed of even date. If any installment of interest be not paid at maturity, this principal note and all interest due thereon shall become due and payable at once, without notice, at the option of the holder of this note. This note is executed upon the condition that partial payments in any amount not exceeding one-fifth of the principal in any one year, will be received at any time, at the office of said company in Wichita, Kansas, and that the interest will be rebated from the date of such payments." Held, that this clause rendered the note nonnegotiable.

4. TENDER--Sufficiency--Amount. According to the loan contract, the first installment of interest was due March 1st. The loan company tendered a check for the amount of the loan to the borrower February 14th, less the interest due March 1st, amounting to $ 5,46. Held, that the loan company had no right to withhold the interest not due, and that the tender was not sufficient.

Thornton W. Sargent and W. D. Walton, for plaintiffs in error.

Keys & Rummons and Chas. Mitschrich, for defendants in error.

ROSSER, C.

¶1 This is a suit by Daniel A. Riggs and Jennie Riggs against the Winne Mortgage Company, M. Pauline Bell, and James B. Bell, in which plaintiffs seek to cancel a mortgage for $ 1,560 on certain lands described in the petition. On the 3d day of January, 1905, the plaintiffs made application to the Winne Mortgage Company of Wichita, Kan., for a loan of $ 1,560 for ten years, at 10 per cent. interest, payable annually from the 1st day of March following, offering as security the land described in the petition. The application was made through the local agent of Winne & Winne at Lawton, Mr. O. P. M. Butler. The application contained the following paragraph:

"I hereby constitute and appoint Winne & Winne, of Wichita, Kansas, my agents to procure the necessary abstract of title to the land, and to show a clear and unincumbered title in fee simple thereof, at my expense, and to charge me for the same, and at my expense to pay off all liens on said land, and to send the money or draft to make such payments at my risk. I hereby authorize them to procure the loan herein applied for, from the company to which this application is made, or from any other source from which they can get this sum herein applied for."

¶2 Winne & Winne was a partnership, and Scott E. Winne, the active member of the partnership, was also president of the Winne Mortgage Company, and apparently its general manager, having general control of its business. In a separate contract the plaintiffs agreed to pay Winne & Winne $ 360 out of the loan as commission or compensation for securing the loan. On the 6th day of January Butler took the note and mortgage to plaintiffs' residence, and at the same time took plaintiff Daniel A. Riggs a check from Winne & Winne for the sum of $ 360, and had Riggs indorse the check. The check was then returned to Butler, who returned it to the company as a voucher for the commission. Riggs did not seem to understand why it was necessary for him to indorse the check, upon which he did not receive the money, but he finally indorsed it. It must be admitted that there was some reasonable ground for his curiosity along this line. The check was in the following form:

"Pay to the order of Daniel Riggs three hundred sixty and no-100 dollars to the National Bank of Wichita, Wichita, Kansas. Winne & Winne."

¶3 No notary qualified to take the acknowledgment was available on the 6th of January, but on the 10th of January a man named Logan took the acknowledgment. The mortgage provided that it and the note it secured should be construed and governed by the laws of Oklahoma Territory. The mortgage was put on record, and mailed to the company. There was a conflict in the testimony as to when the money was to be advanced upon the loan, with reference to the delivery of the mortgage. The plaintiffs testified that the understanding when they delivered the mortgage to be recorded was that the money was to be paid as soon as the mortgage was recorded. Butler denies this. He testified that the money was not to be paid until final proof was made upon the land described in the mortgage, and that it was then to be paid by check. After the mortgage left plaintiffs' hands they seemed to get uneasy about the matter, and on the 7th day of February they drew on the Winne Mortgage Company for the amount of the loan, but the draft was not paid. There was testimony to the effect that at that time the final proof had not reached Washington, D. C., or, if it had, the title had not been perfected from the government to the plaintiff Daniel A. Riggs. It also appeared from the evidence that the company did not advance loans through drafts, but that they always paid by check. On the lath of February, Winne & Winne drew a check payable to Daniel A. Riggs for $ 1,184.44, and sent it to Butler, their agent, and Butler went to Riggs' home, and told him that he had a check for the loan. The amount of $ 1,184.44 was arrived at by deducting from the amount of the loan $ 360 commission, $ 2.70 abstract fees, $ 2.90 recording fees, $ 3 attorney fees, $ 1.50 for recording patent, and $ 5.46 interest from February 14 to March 1, 1905. Riggs replied that he had drawn a draft which the company had turned down, and he was not going to take the loan. He also stated that the amount of the check was not right; that the interest from the 14th of February to March 1st was improperly deducted. Riggs also said that the check was not good. Butler then offered to go with Riggs to Snyder or Lawton and get the money on the check, but Riggs declined to go. After the draft drawn on the 7th of February was refused, Riggs consulted some attorneys about canceling the mortgage, and had been at an expense with reference to that which Butler offered to pay if Riggs would go with him to where the check could be cashed, but Riggs refused to go and refused the check. On the 23d of February, 1905, the plaintiff brought suit against the Winne Mortgage Company to cancel the mortgage, and had publication notice served. The note is in the following form:

$ 1,560.00. Hobart, Oklahoma Ter., Jan. 6, 1905. Ten years after date, for value received, I promise to pay to the order of the Winne Mortgage Company fifteen hundred sixty & no-100 ($ 1,560.00) dollars, at the office of the said company, in Wichita, Kansas, with interest at the rate of 7 per centum per annum from date until paid, payable annually on March first of each year, excepting the last installment, which shall be due and payable with the principal. If this note is sent to the Farmers' & Merchants' Bank at Snyder, Oklahoma Territory, or to any other bank, for collection, I agree to pay exchange and collection expenses, and this note shall not be deemed paid until the funds are actually received by the payee. Interest coupons are hereto attached representing the interest from date to maturity, which with this principal note are secured by a mortgage deed of even date. If any installment of interest be not paid at maturity, this principal note and all interest due thereon shall become due and payable at once, without notice, at the option of the holder of this note. This note is executed upon the condition that the partial payments in any amount not exceeding one-fifth of the principal in any one year, will be received at any time, at the office of said company, in Wichita, Kansas, and that the interest will be rebated from the date of such payment. . Daniel A. Riggs. Jennie Riggs. Post-office address: Snyder, O. T. No. F. 2585."

¶4 The notes and mortgage were transferred to M. Pauline Bell about the time the suit was brought. Dr. Jas. B. Bell acted as the agent of M. Pauline Bell in purchasing the note and mortgage. He testified that on the 24th of February he received a letter from Jas. A. Laighton, who was the New England manager of the Winne Mortgage Company, asking him to mail him check for the amount of the notes, which the mortgage in controversy was given to secure, and that he gave Mr. Laighton a check which was paid, and he received the notes and mortgages as agent for his wife, M. Pauline Bell. Dr. Bell testified that at the time he bought the note and mortgage he had no knowledge or intimation that the money had not been advanced upon the loan, and did not know that a suit was pending to cancel the mortgage. The Winne...