Dodge v. Birkenfeld

• Decision Date: 10 July 1897
• Citation: 49 P. 590,20 Mont. 115
• Parties: DODGE v. BIRKENFELD.
• Court: Montana Supreme Court

49 P. 590

20 Mont. 115

DODGE v. BIRKENFELD.

Supreme Court of Montana

July 10, 1897

Appeal from district court, Lewis and Clarke county; H. R. Buck Judge.

The plaintiff, Elizabeth Dodge, sued the defendant, A Birkenfeld, to recover the amount of a promissory note, dated at Helena, Mont., October 6, 1890, and due October 6, 1893 made by George H. Pew, in favor of M. Bolles & Co., and interest thereon, and for judgment in foreclosure of a mortgage given by said George H. Pew and wife to M. Bolles & Co., and assigned to plaintiff. The defendant, Birkenfeld answered, pleading payment and satisfaction, and setting forth that he had purchased the mortgaged premises on November 1, 1890, and received a deed therefor from Pew and wife; that he notified Wallace & Thornburgh, of Helena, agents of the owner, and holder of said note and mortgage, of his purchase of the property, and on April 14, 1891, paid to said Wallace & Thornburgh, agents as aforesaid, the whole amount due on said note and mortgage, and that at the time of said payment Bolles & Co. appeared to be the owners of the mortgage; that Wallace & Thornburgh gave to defendant a receipt for the amount of his payment, and subsequently, on July 18, 1891, as agents of Bolles & Co., Wallace & Thornburgh placed on record a duly-executed satisfaction of the Pew mortgage. In reply to defendant's answer, plaintiff denied payment, and alleged that the satisfaction of the mortgage was a forgery. Upon the trial the court refused to submit to the jury the testimony introduced by the defendant, offered to show that Bolles & Co. were the agents of the plaintiff in relation to the mortgage and note, and that Wallace & Thornburgh were their subagents, on the ground of the insufficiency thereof. Judgment was entered in favor of the plaintiff. Defendant moved for a new trial, which was denied him; and from the order denying the same, and from the judgment, defendant appeals. Affirmed.

A. C. Botkin and M. Bullard, for appellant.

Arthur J. Craven, for respondent.

PER CURIAM.

It appears from the testimony that the plaintiff, Mrs. Dodge, a resident of Essex, Mass., on March 5, 1891, bought the note and mortgage sued on, from M. Bolles & Co., of Boston, for $1,200, and on that day received a formal written assignment of said note and mortgage, all of which were delivered to her by Bolles & Co. Mrs. Dodge deposed that the note, mortgage and an interest coupon therewith were actually in her possession from the day she bought them until some time in April, 1893, when she sent them to Bolles & Co., to be by them forwarded to Helena, Mont., for collection. After Bolles & Co. transmitted the papers to Helena, Mrs. Dodge communicated directly with her counsel in that city. She knew nothing of Wallace & Thornburgh, and had no knowledge of any attempted satisfaction of the mortgage in Montana. The record also shows that in November, 1890, the defendant, Birkenfeld purchased from one Pew and wife the real estate described in the mortgage involved, and received a deed therefor. Mr....