First National Bank of Carthage v. Mutual Benefit Life Insurance Company of Newark
| Decision Date | 22 June 1898 |
| Parties | First National Bank of Carthage v. Mutual Benefit Life Insurance Company of Newark, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. W. M. Robinson, Judge.
Affirmed.
E. T. & C. B. Allen for appellant.
(1) The effect of the correspondence transmitting the money is purely a question of law. Fruin v. Railroad, 89 Mo. 397; Milstead v. Mortgage Co., 49 Mo.App. 191; 1 Thomas on Trials, sec. 1370. (2) The meaning of the letters is not affected with any uncertainty, and there is no occasion to consider the surrounding circumstances. Kimball v Brauner, 47 Mo. 399; Fruin v. Railroad, 80 Mo 405; Wolff v. Campbell, 110 Mo. 119. (3) The letters on their face show that plaintiff transmitted the money to the trust company in its character of plaintiff's agent. Milstead v. Mortgage Co., 49 Mo.App. 191; Cumming v. Hurd, 49 Mo.App. 139; Adams v Improvement Co., 44 N. J. L. 638; Cheney v. Libbey, 134 U.S. 68; Security Co. v. Graybeal, 52 N.W. 497; Bank v. Burson, 57 N.W. 705. (4) The letters on their face show that the trust company did not assume to accept payment of the note for the defendant, and the question of its authority to do so is immaterial. Lane v. Duchac, 73 Wis. 655; Ross v. Trowbridge, 63 N.W. 534; Joy v. Vance, 62 N.W. 140; Cooley v. Williard, 34 Ill. 73. (5) The trust company could not make this money, so received as plaintiff's agent, the money of the defendant so as to pay this note, except by sending it to the defendant. Security Co. v. Graybeal, 52 N.W. 497; Bank v. Burson, 57 N.W. 705; Phillip v. Mayer, 7 Cal. 83; Bradford v. Arnold, 33 Tex. 412. (6) It is a well settled rule that, if a debtor owing money on a written security pay to or settles with another as agent, it is his duty at his peril to see that the person so paid, or settled with, is in possession of the security. Cumming v. Hurd, 49 Mo.App. 139; Tappan v. Morseman, 18 Iowa 499; Austin v. Thorp, 30 Iowa 376; Cooley v. Williard, 34 Ill. 68; Smith v. Kidd, 68 N.Y. 136; Crane v. Gruenewald, 120 N.Y. 274; Haines v. Pohlman, 25 N.J.Eq. 179; Meachern on Agency, sec. 373; Jones on Mortgages, sec. 964. (7) The trust company had no authority to collect this note, and did not have the note, and no recovery can be had except upon an estoppel, and no estoppel was pleaded, and none proved. Alexander v. Rollins, 84 Mo. 657; Bank v. Doran, 109 Mo. 40; Ferneau v. Whitford, 39 Mo.App. 317; Cummings v. Hurd, 49 Mo.App. 139. (8) The fact that interest coupons indorsed to it for collection were transmitted by defendant to the trust company, is not evidence that the trust company had authority to collect a principal note not in its possession. Cummings v. Hurd, 49 Mo.App. 146; Austin v. Thorp, 30 Iowa 377; Ross v. Trowbridge, 63 N.W. 534; Cox v. Cutter, 28 N.J.Eq. 13; Security Co. v. Graybeal, 52 N.W. 497; Smith v. Kidd, 68 N.Y. 130; Ilgenfritz v. Ins. Co., 81 F. 27; Ins. Co. v. Mills, 81 F. 32.
E. O. Brown for respondent.
(1) An agent who loans money and collects and remits interest to a non-resident holder of a note and mortgage, and is authorized to remit the principal and interest after the loan is due, is authorized to receive payment of the note and mortgage, although they are not at the time in his possession. Shane v. Palmer, 43 Kan. 481; Manshardt v. Rott, 59 Mo.App. 505; Miller v. Wilson, 126 Mo. 48; Sharp v. Knox, 48 Mo.App. 169. (2) The rule deducible from the authorities is that where as in this case, it appears the agent has repeatedly performed acts like the one in question, which the principal has ratified and adopted, his authority for the performance of the disputed act may be inferred. Mecham on Agency, sec. 86; Edwards v. Thomas, 66 Mo. 468; Brooks v. Jamison, 55 Mo. 505; Gibson v. Zeibig, 24 Mo.App. 65; Greely-Burnham Groc. Co. v. Capen, 23 Mo.App. 307; Wheeler v. Metropolitan Co., 25 Mo.App. 190; Railroad v. Simons, 25 S.W. 996; S.W. Teleg. Co. v. Dale, 39 C. L. J. 481; Summerville v. Railroad, 62 Mo. 391; Emmerson v. Cogswell, 16 Mo. 77; Ferneau v. Whitford, 39 Mo.App. 311.
OPINION
On the fourth day of April, 1889, Isaac N. Hendricks, being the owner of the tract of land described in the petition in this cause, by his deed of trust of that date in which his wife joined, conveyed the same to one George W. Toms in trust to secure the payment to defendant, the said insurance company, of a certain promissory note for $ 2,000, due and payable on the first day of May, 1894, and five coupon interest notes thereto attached of the same date, each for the sum of $ 120, one payable on the first day of May of each successive year thereafter until the maturity of said principal note, all with interest at the rate of ten per cent per annum after maturity, and payable to the order of the defendant at its office in Newark, N. J.
Afterward on the eighteenth day of October, 1892, the said Hendricks by his warranty deed of that date in which his wife also joined, conveyed the premises to the plaintiff, who on the eleventh day of August, 1894, instituted this suit in the Jasper county circuit court, in which county the land is situate, alleging in its petition that all of the indebtedness evidenced by said promissory note and coupons and the interest thereon had been paid off and discharged according to their tenor and effect, and all the covenants of the deed of trust complied with and that thereupon the plaintiff had requested the defendant company to acknowledge satisfaction of said deed of trust, or to execute and deliver to plaintiff a sufficient deed of release thereof, the legal costs and charges for executing which had been paid to the defendant for that purpose, which, however, the defendant has refused to do. Wherefore plaintiff prays that the defendant be so required, and that said deed of trust be adjudged satisfied, and for general relief.
The answer of the defendant after admitting the incorporation of the parties plaintiff and defendant and the execution of the notes aforesaid and the deed of trust, denied all the other allegations of the petition. On the hearing, the issues were found for the plaintiff and a decree entered that said deed of trust be canceled and for naught held and esteemed, and the cloud thereof upon plaintiff's title be removed, and that plaintiff recover of defendant its costs herein expended; from which decree and judgment, plaintiff appeals.
It appears from the evidence in the case, that in the year 1889 "The Wilson and Toms Investment Company" of the city of St. Louis, a corporation under the laws of the State of Missouri, was engaged in the business of "placing real estate loans on farm lands and placed a great many loans of that character for the Mutual Benefit Life Insurance Company" the defendant herein.
On the fifteenth of March, 1889, the said Hendricks made a written application to the said investment company, whereby he appointed said investment company his agent to procure a loan of $ 2,000 for the term of five years at six per cent per annum secured by trust deed on the premises in question. This application, with the recommendation of the investment company of the security offered, was submitted by said company to the insurance company on the twenty-ninth of March, 1889, and having been approved by the latter company, the promissory notes and deed of trust aforesaid were executed by the said Hendricks and wife, the deed of trust recorded, the notes and recorder's certificate delivered to the investment company and by it forwarded to the insurance company, the investment company drawing at the same time upon the insurance company for the amount of the loan. The draft having been honored and the proceeds applied to the payment of a prior mortgage upon the premises, the deed of trust was then forwarded by the investment company to the insurance company. After the loan had been thus completed, the interest coupons, as they became due, were thereafter forwarded to and collected, first by the investment company and afterward by the Central Trust Company of St. Louis, which succeeded to the business of the investment company in May or June, 1891, and thereafter sustained the same relation to the parties as did the investment company before that date. The coupons were paid by Hendricks until his conveyance to the plaintiff bank, and afterward by the bank. This continued until the fifteenth of April, 1894, when the trust company, as had been the custom theretofore when coupons were about to fall due, mailed the following note, and blank for reply, to the plaintiff:
In connection with this letter and blank, it may be well to note, that in negotiating this loan Hendricks in addition to the notes and deed of trust to the insurance company, also at the same time and as part of the same transaction executed and delivered to the investment company five other notes each for the sum of $ 40, falling due annually at the...
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