DeXter v. Berge

• Citation: 78 N.W. 1111,76 Minn. 216
• Parties: DEXTER v. BERGE et al.
• Decision Date: 09 May 1899
• Court: Minnesota Supreme Court

76 Minn. 216

78 N.W. 1111

DEXTER

v.BERGE et al.

Supreme Court of Minnesota.

May 9, 1899.

Appeal from district court, Ottertail county; L. L. Baxter, Judge.

Action by E. Milton Dexter, administrator of Stella A. Shields, against Magne H. Berge and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Syllabus by the Court

1. On the evidence, held, the agents had express authority from the holder of a past-due note and mortgage to receive the amount due thereon, although they did not have in their possession the note or mortgage or a satisfaction of the mortgage.

2. The mortgagee and her husband loaned their money through the agents, and he often carried on the correspondence with them for his wife. After a long course of dealing, the mortgagee died, her husband was appointed her executor, and the agents acted for him in collecting his and his late wife's securities. Held, for the purpose of showing the character of the authority given by the executor to the agents to collect the wife's mortgages, it was competent to prove this prior course of dealing, although their prior authority as her agents had been terminated by her death.

3. Held, a foreign executor has, without complying with Gen. St. 1894, §§ 4715-4717, 5917, or 6053, authority to receive in this state a payment voluntarily made.

4. Following General Convention v. Torkelson (Minn.) 76 N. W. 215.Held, the books of account of the agents were admissible in evidence. Flannery & Cooke and E. L. McMillan, for appellant.

Chas. J. Tryon, J. O. Barke, and Parsons & Brown, for respondents.

CANTY, J.

This is another ‘Kelley case.’ The defendants Berge executed to Stella A. Shields a note and mortgage dated May 20, 1890, due in five years after date, for the sum of $600. This is an action to foreclose the mortgage. All of the defendants plead payment, and, on the trial before the court without a jury, the court found the plea to be true. Plaintiff appeals from the judgment.

The questions are (1) whether A. F. & L. E. Kelley, as the agents of Stella A. Shields, had authority to receive payment, and (2) whether they did receive it. They acted as her agents in making a loan for which the note and mortgage were given. The Kelleys were loan agents at Minneapolis, and from 1882 until 1896 the loaned the money of Stella A. Shields and her husband, Harry F. Shields. The amounts which each of these parties loaned through the Kelleys and kept loaned out during this time amounted to about $15,000, or $30,000 in all. In making these loans, a long course of dealing sprang up between the parties. There is evidence tending to prove that the Kelleys exercised their own judgment as to the sufficiency of the title of the property on which security was taken and the sufficiency of the security; that they made a practice of collecting the principal of the loans and reloaning the same; that they paid interest on the money when it remained in their hands awaiting an opportunity to be loaned; that they sometimes made loans in excess of the amount of the money on hand, and reimbursed themselves from subsequent collections. Shields' money and his wife's money were loaned separately, the securities were taken in the name of the one whose money was loaned, and were sent to him or her, as the case might be, after the mortgage was recorded; but quite frequently these securities were returned to, and left in the hands of, the Kelleys for collection. During one year of this time the Shieldses resided at Minneapolis, and during the rest of the time they resided at Philadelphia, Pa. Sometimes during their residence at the latter city Mrs. Shields conducted her own correspondence with the Kelleys, and at other times Shields carried on the correspondence for both himself and his wife. The mortgaged premises here in question are situated in Ottertail county, where the defendants Berge reside, and the Kelleys made the loan to them through Clambey, a subagent of the Kelleys, residing at Fergus Falls in that county. After the mortgage was recorded, the Kelleys sent it and the note to Mr. Shields, and have not since had possession of either of them. On January 3, 1895, Mrs. Shields died a resident of Philadelphia, and on January 16, 1895, the husband was there appointed executor of her estate. The loan to the Berges fell due May 20th following, and on July 1st they applied to the Kelleys, through Clambey, for a new loan. The Kelleys had in their hands, for the purpose of being loaned by them, the money of the defendant Davis, and more than sufficient of that money to make the loan. They accepted the application for...