Bissell v. Dowling

• Decision Date: 18 July 1898
• Citation: 117 Mich. 646,76 N.W. 100
• Court: Michigan Supreme Court
• Parties: BISSELL v. DOWLING ET AL.

76 N.W. 100

117 Mich. 646

BISSELL v. DOWLING ET AL.

Supreme Court of Michigan

July 18, 1898

Appeal from circuit court, Osceola county, in chancery; James B McMahon, Judge.

Bill by John H. Bissell against Thomas Dowling and others to foreclose a mortgage. From a decree, plaintiff appeals. Affirmed.

C. H Rose, for appellees.

LONG J.

March 26, 1888, defendants Dowling executed and delivered to Walker & White, of St. Johns, a mortgage of $300, due in five years with interest at 7 per cent., payable semiannually. There was a commission mortgage also, and the whole debt evidenced by one principal and 10 coupon notes, payable at the office of Walker & White. July 13, 1888, this mortgage was assigned to complainant; but the assignment was not put on record until February 6, 1894, and the mortgagors continued to pay the interest to Walker & White until 1889, when the firm of Walker & White was merged into the Michigan Mortgage Company and interest thereafter was paid by the mortgagors to that company. At each of those payments of interest the coupon notes were marked "Paid," and surrendered to the mortgagors, either by Walker & White or by the Michigan Mortgage Company. The mortgage became due in March, 1893, and the Dowlings borrowed the money from the defendant bank to pay it. To secure this loan, the Dowlings gave to the bank a mortgage on the same lands. The bank sent the moneys forward to the Michigan Mortgage Company, and it was receipted for by the company. This money the Michigan Mortgage Company credited up to complainant on its books of account at the time it was received, in March, 1893. No discharge of the mortgage was ever made. In February, 1894, the Michigan Mortgage Company failed; and a receiver was appointed, who took charge of the business. The Dowlings supposed at the time this mortgage was paid by the loan from the bank that Walker & White or the Michigan Mortgage Company owned the mortgage, as they had never heard of the assignment, and their coupon notes were always canceled by one or the other, and returned. About one year after the Michigan Mortgage Company failed, the complainant wrote Mr. Dowling, asking him to pay the mortgage. This was refused; and this proceeding was commenced to foreclose it, the complainant claiming that no interest had been paid upon it since September, 1892. The defense to the mortgage is (1) that the Michigan Mortgage Company was the agent of complainant, and received the moneys on the mortgage for him; (2) that the complainant ratified the action of the Michigan Mortgage Company in receiving this money in discharge of the mortgage. (3) That the complainant is estopped by his own conduct from claiming that the mortgage has never been paid.

The court below filed a written opinion, in which he discusses several of the questions raised. On the question of agency that court says: "During all the years from the time the mortgage was given until it was paid, the mortgage company was doing a large amount of business for complainant, and during that time handled for him over $100,000. Some of this money belonged to the complainant, and some to clients of his. During all this time the mortgage company collected large amounts of money, both of principal and interest, for complainant, and often reinvested it for him at discretion with his full approval and consent. Sometimes these collections and reinvestments were made by order of complainant, and often without it; but, as far as the evidence discloses, whatever the company did was cheerfully ratified and approved by complainant. He wrote the company and Walker many letters during the period of five years from March, 1888, to March, 1893, concerning his mortgages, urging their prompt collection, and inquiring as to their status and the probability of payment being promptly made. At times he urged the company to collect in money on any of his mortgages generally, alleging that he was in need of money. On September 12, 1892, he wrote the company: 'Inclosed find for collection the following coupons, amounting to $450.20. I shall be glad to have a remittance now when anything is collected, as I am unusually short. I would like to have a little pushing done on some old delinquents to get the pay or the land or to have live renewals.' On July 6, 1891, he sent several coupons for collections, and then says: 'The principal of several of these are due, and I should like other securities or payment and discharge.' In another letter he writes: 'I am obliged for your favor of the 31st,...