Corey v. Hunter
| Decision Date | 19 November 1900 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pembina County; Sauter, J.
Action by Abbie J. Corey against David Hunter and others to foreclose a real estate mortgage. From a judgment in favor of defendants, plaintiff appeals.
Reversed.
Decision of the trial court reversed, and judgment entered in favor of the plaintiff, with costs.
J. G Hamilton and Tracy R. Bangs, for appellant.
The question is one of agency. The statute designates two kinds of agents,--general and special, Rev. Codes 1895, section 4306; and these are divided into two classes,--actual and ostensible, Rev. Codes 1895, section 4307, and any agent has such authority as the principal actually or ostensibly confers upon him. Rev. Codes 1895, section 4320. There must be some substantial ground for the agent's right to act and his authority must be direct and specific, or the facts and circumstances must be of such a nature that the agent's right to act may be fairly implied. Trull v Hammond, 73 N.W. 642 (644). Particularly is this true where the agent relies on implied authority to charge real property. Union Mut. L. Ins. Co. v. Masten, 3 F. 881; Challoner v. Bouck, 56 Wis. 652. Every delegation of power carries with it, by implication, the authority to do those things which are reasonable, necessary and proper to carry into effect the main power conferred and which are not forbidden. But the doctrine of implied authority goes no further than this. Burchard v. Hull, 74 N.W. 163 (165). Apparent authority is that authority which an agent appears to have from that which he actually does have, and not from that which he may pretend to have, or from his actions on occasions which are unknown to and unratified by his principal. Oberne v. Burke, 46 N.W. 838 (842). The principal is responsible only for the appearance of authority which is caused by himself, and not for an appearance of conformity to authority caused only by the agent. Edwards v. Dooley, 120 N.Y. 540; Burchard v. Hull, 74 N.W. 163 (164). When the agency is to be inferred from the conduct of the principal, that conduct furnishes the only evidence of its extent as well as of its existence. Humphrey v. Havens, 12 Minn. 198. No authority to receive payment of a loan is to be implied from the fact that the agent is employed to negotiate it. 1 Am. & Eng. Enc. L. (2d Ed.) 1026 and cases cited; Western Sec. Co. v. Douglass, 44 P. 257 (259); Smith v. Kidd, 68 N.Y. 130, 23 Am. Rep. 157 (161); Schenk v. Dexter, 79 N.W. 526; Trull v. Hammond, 73 N.W. 642 (644.) The fact that a note is made payable at a particular office does not, of itself, invest the person in charge of the office with implied or apparent authority to collect either principal or interest. Hollinshead v. Stuart, 8 N.D. 35; Stoltzman v. Wyman, 8 N.D. 108; Dwight v. Lenz, 77 N.W. 285; St. Paul Nat. Bank v. Cannon, 48 N.W. 526; Trowbridge v. Ross, 63 N.W. 534; Englert v. White, 60 N.W. 224. The fact that an agent has, from time to time, collected the amount due on interest coupons, he being then in possession of the coupons, does not vest in him either implied or apparent authority to collect the principal without possession of the principal note. Bull v. Mitchell, 66 N.W. 632; Western Sec. Co. v. Douglass, 44 P. 257; Trull v. Hammond, 73 N.W. 642; Joy v. Vance, 62 N.W. 140; Porter v. Ourada, 71 N.W. 52; Klindt v. Higgins, 64 N.W. 414; Bromley v. Lathrop, 63 N.W. 510; Stolzman v. Wyman, 8 N.D. 108; Hollinshead v. Stuart, 8 N.D. 35; Dexter v. Morrow, 79 N.W. 394; Schenk v. Dexter, 79 N.W. 526; Burchard v. Hull, 74 N.W. 163; Security Co. v. Graybeal, 52 N.W. 497; Brewster v. Carnes, 9 N.E. 323; Doubleday v. Kress, 50 N.Y. 410, 10 Am. Rep. 502; Dwight v. Lenz, 77 N.W. 546; Campbell v. O'Connor, 76 N.W. 167; Chandler v. Pyott, 74 N.W. 263; Stark v. Olson, 63 N.W. 37; Wilson v. Campbell, 62 N.W. 278; Trowbridge v. Ross, 63 N.W. 534; Bromley v. Lathrop, 63 N.W. 511; Terry v. Durrand Land Co., 71 N.W. 525; United States Bank v. Bursom, 57 N.W. 705. Nor does the fact that the agent has collected the principal of other loans invest him with such authority. Church Ass'n v. Walton, 72 N.W. 998; Joy v. Vance, 62 N.W. 140; Smith v. Kidd, 68 N.Y. 130, 23 Am. Rep. 157, 165. No act of an agent tending to extend the scope of his employment, however extensive or often repeated, which does not come to the knowledge of the principal, will enlarge his authority to bind him. Oberne v. Burke, 46 N.W. 838; 1 Am. & Eng. Enc. L. (2d Ed.) 969, note 1. Possession of the securities is the crucial test of an agent's implied or apparent authority to receive payment, and without such possession he is without apparent authority. Walsh v. Peterson, 81 N.W. 853 (855); Trull v. Hammond, 73 N.W. 642 (644); Tappan v. Morseman, 18 Ia. 500; Wooding v. Bradley, 76 Va. 614; Davidson v. Porter, 57 Ill. 300, and many of the cases above cited.
W. J. Burke and Bosard & Bosard, for respondent.
An authority is raised by implication of law where the principal has justified the belief that he has given such authority in cases where he has employed a person in a regular employment and permitted him for a considerable time to transact a particular business for the principal. Dows v. Greene, 16 Barb. 72; Lyell v. Sanborn, 2 Mich. 109; 1 Pars. Conts. § 2. An agent entrusted with the performance of a particular duty has implied authority to do such incidental acts as are necessary and usual for carrying out the main purpose of his employment. Addison, Cont. § 58; Storey on Agency, § 443; Storey on Agency, § § 1773, 126. A principal is bound by his agent's acts within the apparent authority which the principal knowingly permits his agent to assume or which he holds the agent out to the public as possessing. Heath v. Stoddard, 40 A. 547; Sweetzer v. Shorter, 26 So. Rep. 298; Lytle v. Bank, 26 So. Rep. 6; Flagg v. Marion County, 48 P. 693; Blake v. Mfg. Co., 38 A. 241; Sawin v. Union B. & S. Ass'n, 64 N.W. 402; Griggs v. Sheldon, 53 Vt. 501; Thompson v. Shelton, 68 N.W. 1055; Phoenix Ins. Co. v. Walter, 70 N.W. 938. That the person to whom money due another is paid is not in possession of the instruments by which the indebtedness is evidenced, is not conclusive of the question of authority or lack of it. Thompson v. Shelton, 68 N.W. 1055; Phoenix Ins. Co. v. Walter, 70 N.W. 938. That the authority of an agent is limited to a particular business does not make the agency special. It may be as general in regard to that as if the range of it were unlimited. Crain v. Bank, 114 Ill. 516; Anderson v. Connelly, 21 Wend. 279; Jeffery v. Bigelow, 13 Wend. 518; Roundtree v. Benson, 59 Wis. 522; Bell v. Offutt, 10 Bush. 632. McLaughlin had authority to conduct the business of his principal, and therefore had authority to do everything necessary or proper and usual in the ordinary course of that business. Minor v. Bank, 26 U.S. 46, 7 L.Ed. 47; Sentell v. Kennedy, 29 La.Ann. 679; German Fire Ins. Co. v. Gunert, 112 Ill. 68; Banner Tobacco Co. v. Jenison, 48 Mich. 459; Shepherd v. Gas Light Co., 11 Wis. 234; Bridenbecker v. Lowell, 32 Barb. 9; Cummings v. Sargent, 9 Metc. 172; Taylor v. LaBeaume, 14 Mo. 572, 17 Mo. 338; Baker v. Ry. Co., 91 Mo. 152; Johnson v. Jones, 4 Barb. 369. One clothing an agent with apparent authority is not, to parties dealing on the faith of such authority, conclusively estopped from denying it. Hubbard v. Tenbrook, 2 L. R. A. 823; Bank v. Ry. Co., 106 N.Y. 195; Over v. Shiffling, 102 Ind. 191. Ostensible authority to act as agent may be conferred if the party to be charged as principal, affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to trust and act upon such apparent agency. Thompson v. Shelton, 68 N.W. 1055, 49 Neb. 644; Insurance Co. v. Walter, 70 N.W. 938, 51 Neb. 182; Porter v. Ourada, 71 N.W. 52, 51 Neb. 510; Frey v. Curtis, 72 N.W. 478, 52 Neb. 406; Holt v. Schneider, 77 N.W. 1086; Estey v. Snyder, 45 N.W. 415. Where an agent obtains possession of the property of another by making stipulations or conditions which he was unauthorized to make, the principal must either return the property or, if he receives it, it must be subject to the condition upon which it was parted with by the former owner. Mundorff v. Wickersham, 3 Am. Rep. 531.
FISK, District Judge. YOUNG, J., took no part in the foregoing opinion, Judge Fisk, of the First Judicial District, sitting by request.
This is an action brought to foreclose a certain mortgage upon real property executed and delivered on January 4, 1892, by the defendants David Hunter and Annie, his wife, to one S.W McLaughlin, to secure the payment of a certain promissory note for $ 1,350, payable by its terms at the office of said McLaughlin in Grand Forks, on December 1, 1896, which note and mortgage were on March 4, 1892, assigned to the appellant, Abbie J. Corey, of Brookline, Mass., the assignment of which mortgage was on March 11, 1892, recorded in the office of the register of deeds of Pembina county. No question is raised as to the validity of the transfer of this paper, nor as to the bona fides of the transaction whereby this appellant became the owner of said note and mortgage. Appellant remained in the exclusive possession of said paper from the date of such assignment to her until about November 20, 1897, excepting that, as the coupon interest notes became due, they were forwarded by her to McLaughlin for collection. In 1892 the mortgagors sold the real property described in said mortgage to one Sheppard, who in 1895 sold the same to the respondent O'Sullivan. Neither the mortgagor, Hunter, nor his grantee, Sheppard, ever paid any of the coupon interest notes, excepting...
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