Dwight v. Lenz
| Decision Date | 21 December 1898 |
| Docket Number | 11,356 - (138) |
| Citation | 77 N.W. 546,75 Minn. 78 |
| Parties | JOHN W. DWIGHT v. WENZEL LENZ |
| Court | Minnesota Supreme Court |
Appeal by the plaintiff from a judgment of the district court for Wilkin county in favor of defendant, pursuant to the order of C. L. Brown, J. Reversed.
Principal and Agent -- Note Payable at Given Place -- Authority to Receive Payment.
The mere fact that a note is made payable at a certain place does not of itself confer any agency upon the owner or occupant of that place to receive payment in behalf of the payee. In order to make such owner or occupant the payee's agent to receive the money, the paper must be indorsed to or lodged with him for collection.
Principal and Agent -- Possession of Securities of Principal -- Withdrawal of Securities.
A debtor is authorized to infer that a third party, having possession of his note and mortgage at maturity, is, as the creditor's agent, empowered to receive both principal and interest, there being no suspicious circumstances surrounding such possession. But, being founded upon the fact of custody of the securities, such inference ceases whenever they are withdrawn by the creditor.
Principal and Agent -- Foreclosure of Mortgage -- Finding of Payment not Sustained by Evidence.
Held in the action at bar, brought to foreclose a real-estate mortgage, and on the trial of which the court below found as a fact that payment of the mortgage note had been made by the mortgagor to one W., as the mortgagee's agent duly authorized to receive the amount due, that there was no evidence on which to base such a finding.
McCumber & Bogart, for appellant.
The naming of a place for the payment of a note does not make the owner of that place an agent to collect the note, or to receipt for the money. No power, authority or duty, is thereby conferred upon such person in reference to the note. 1 Daniel, Neg. Inst. § 326; Hills v. Place, 48 N.Y. 520; 1 Randolph, Com. Paper, § 125. See also Balme v. Wambaugh, 16 Minn. 106 (116); Trull v Hammond, 71 Minn. 172. No presentment at the place named is necessary to give a right of recovery against the maker. It only relieves him from damages, if he was ready at the time and place named to pay it and there was no one to receive it. Such readiness is equivalent to a tender, and an answer pleading that fact, and a payment of the money then due into court, will be a bar to the recovery of the interest and costs, but not the cause of the action. Hills v. Place, supra; 1 Daniel, Neg. Inst. § 643. Payment of a bill or note should be made to the legal owner, or holder, thereof or some one authorized by him to receive it. 2 Daniel, Neg. Inst. § 1230; Paris v. Moe, 60 Ga. 90.
W. E. Purcell and Gustav Schuler, for respondent.
The defendant's position here is controlled by the recent decisions of this court in Hare v. Bailey, 73 Minn. 409, and General Convention of C.M. v. Torkelson, 73 Minn. 401. While the weight of authority seems to be that the simple making of a note, payable at the office of an individual not a banker, does not of itself constitute the person, at whose office the note is made payable, the agent of the payee for its collection, yet the courts of two states have held to the contrary. See Lazier v. Horan, 55 Iowa 75; Bank v. Zorn, 14 So. C. 444.
Action to foreclose a real-estate mortgage given to plaintiff to secure defendant's promissory note for $1,000. Defense, payment of the note to one Wood, alleged to have been plaintiff's duly-authorized agent for the purpose of receiving the money.
The plaintiff was a resident of New York, doing more or less business in North Dakota. Wood was a loan agent at Wahpeton, in the last-mentioned state. Defendant was a resident of Minnesota, and employed Wood to negotiate a loan of $1,000 for him. Wood, who had some acquaintance with plaintiff, soon afterwards met and informed him of the opportunity to make this loan, whereupon plaintiff, who had sufficient knowledge of the security offered, drew his check for $1,000 and handed it to Wood, with instructions to make the loan.
The note -- due in three years, with three interest coupons attached (all being made payable at Wood's office) -- and the mortgage were then executed and delivered by defendant, and left in Wood's possession. The mortgage was duly recorded, and then forwarded, with the note (payment thereof guarantied by Wood) and attached coupons, to plaintiff, in New York. He has retained possession of both note and mortgage all of the time until the commencement of the action.
Soon after the first coupon became due, in 1893, defendant paid the amount thereof to Wood, at his office, and the latter remitted to plaintiff by draft, with a request that the coupon be sent to him. Plaintiff indorsed the coupon to Wood, without recourse, and the latter delivered it to defendant. The coupons maturing in 1894 and 1895 were paid in the same way by defendant, were indorsed by plaintiff in the same manner, and in due course of time were delivered into defendant's possession.
to which plaintiff replied that he disliked to extend.
Nothing more was done until June, when plaintiff wrote to Wood concerning the payment of the past-due note. On receipt of this letter, Wood directed plaintiff to send the note and mortgage to the National Bank of Wahpeton for collection, which was done, Wood being notified of the fact.
Defendant paid the amount due on the note to Wood at his office on July 1, 1896; the note, mortgage and satisfaction piece then being at the bank. Wood kept the money, and soon afterwards became insolvent.
The court below found as a fact that the payment was made to Wood, at his office, as plaintiff's agent duly authorized to receive the amount due, and ordered judgment in defendant's favor.
The appeal is from a judgment entered after a "case" was settled, and a motion for a new trial denied.
The only question which we need to consider is whether this particular finding of fact was supported by the evidence. Was there any evidence that Wood was plaintiff's agent duly authorized to receive the money? If there was, the plaintiff must be the loser. But, if not, the loss, severe as it may be, will fall upon the defendant mortgagor.
From the evidence it is obvious that Wood was defendant's agent for the purpose of obtaining the loan, but that he became plaintiff's agent for disbursing the amount of the check. When plaintiff placed the check in Wood's hands, with directions to make the loan, taking the note and real-estate mortgage, not then executed, Wood became plaintiff's agent for that...
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