Fair v. Bowen

• Decision Date: 10 July 1901
• Court: Michigan Supreme Court
• Parties: FAIR v. BOWEN et al.

86 N.W. 991

127 Mich. 411

FAIR v. BOWEN et al.

Supreme Court of Michigan

July 10, 1901

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

Bill by Campbell Fair against John D. Bowen and another. From a decree in favor of plaintiff, defendants appeal. Affirmed.

McAlvay & Grant, for appellants.

Stuart & Barker, for appellee.

MONTGOMERY C.J.

This is one of those unfortunate cases in which one of two innocent parties is compelled to suffer through the default of a third party. The complainant held a mortgage upon land in Manistee county, given by defendant John D. Bowen, the land covered having been conveyed to Arthur D. Bowen after the execution of the mortgage. In March, 1894, a release of a part of the mortgaged premises was sent to one Leo F. Hale, and, upon Arthur D. Bowen turning over to him certificates of deposit amounting to something over $800, with the understanding that $644 of this sum was to be received as payment on the mortgage, and forwarded to complainant's agents at Grand Rapids, the release of a part of the mortgaged premises was delivered, and a sale made to one Frederickson of the land described in the release. The only question in the case is whether, in receiving these certificates of deposit, Hale acted as the agent of complainant or represented Bowen. The circuit judge was of the opinion that Hale represented defendants Bowen, and, on a full examination of the record, we agree with this conclusion. It appears that in previous correspondence relative to the interest accruing upon this mortgage Mr. Hale had written to Scribner Bros., the agents of complainant, and had made remittances of interest and on the principal at different times. On the 16th of February, 1894, Mr. Hale wrote to Scribner Bros., stating that Mr. Bowen had a chance to sell 80 acres of the land, and desired to get a release of that 80, saying, 'I believe I can get him to pay $400 and interest on the $400 from maturity of last interest until paid,' and stating that, 'If that is satisfactory you may procure a release, and send to me, and I will turn over to Bowen on payment of amount.' To this Mr. Scribner replied, stating, in substance, that he had presented the request to his client, who desired to know further in regard to the property, and requested him (Scribner) to have Mr Bowen give a description of the two parcels, stating improvements, etc., and adding: 'From your...