Fletcher v. Brainerd

• Decision Date: 04 June 1903
• Parties: FLETCHER v. BRAINERD.
• Court: Vermont Supreme Court

55 A. 608

75 Vt. 300

FLETCHER

v. BRAINERD.

Supreme Court of Vermont. Franklin.

June 4, 1903.

Appeal from Chancery Court, Franklin County.

Bill in chancery by John B. Fletcher against Anna M. Brainerd. From a decree dismissing the bill, the orator appeals. Reversed.

Argued before TYLER, START, WATSON, STAFFORD, and HASELTON, JJ.

Wm. P. Dillingham, Fuller C. Smith, and Alfred A. Hall, for orator.

C. W. Witters, for defendant.

TYLER, J. This bill is brought to enforce an equitable lien upon the defendant's dwelling house by reason of the orator having furnished her $2,000 with which to make repairs thereon. The defendant contends that the statute of limitations has run upon the claim, and that it is a stale demand. The master finds that in the year 1880 the defendant, Anna M. Brainerd, and her husband, occupied a house and lot situated in St Albans, owned by Mrs. Brainerd as her separate estate; that they desired to make extensive repairs upon the house, and found it necessary to borrow money for the purpose; that Mr. Brainerd applied to the orator for a loan of $2,000, explaining to him the purpose for which the money was required, and that the house was Mrs. Brainerd's, and offered the orator her note for the amount, saying that he would sign it as surety, and also turn over to the orator National Car Company stock as security. The negotiations resulted in the orator making a loan of $2,000, and taking a note therefor, dated April 1880, payable 14 days after demand, with interest, signed by Anna M. Brainerd, and by her husband as surety. It bore the following indorsement: "I have deposited with J. B. Fletcher as collateral for the payment of this note when due, twenty-seven shares of National Car Company stock, with full power to sell the same without notice, in case of nonpayment of this note at its maturity. [Signed] A. M. B." No question was made at the trial but that this stock was Mrs. Brainerd's property. It is found that in negotiating the loan Mr. Brainerd acted for his wife and for himself, and that the orator so understood the transaction, but he had no conversation with Mrs. Brainerd upon the subject. As the homestead was in her name, and the stock was then valued at par, he considered that the loan was well secured. The master, in effect, finds that the $2,000 was used by the defeudant in repairing her house; that the orator has held the note ever since it was given as his own property, and the car company stock as collateral security for its payment; that he never made any demand upon the defendant personally for payment until March 12, 1900, when he made a formal demand in writing. The following payments were made by Mr. Brainerd: $200 August 15, 1883; $100 November 20, 1883; $138 May 8, 1884; and, beginning January 1, 1885, the quarter-yearly dividends upon the stock down to April 1, 1901, were paid to the orator by Mr. Stranahan, as treasurer of the company, and by him indorsed upon the note at the orator's request. In 1884 and 1885 the orator several times requested Mr. Brainerd to pay the note, which requests not being complied with, the orator told him he must have the dividends on the stock, and they were paid to him, as above stated.

The master submits the question to the court, whether, upon the evidence which he recites, Mr. Brainerd was the agent of his wife in the transaction about the loan. The evidence clearly shows that fact. Indeed, the defendant's brief and argument proceed upon the ground that Mrs. Brainerd, in allowing her husband to negotiate the loan, receive the money, deliver the note to the orator, and control the dividends on the stock, the certificates for which she had given him to deliver to the orator, held her husband out to the orator as her agent, and that the orator recognized him as such. It is said in the defendant's brief that during the entire 20 years Mr. Fletcher acted upon the presumption that Herbert Brainerd was the defendant's agent that whatever demand was made upon him for payment upon this note, which was given, as claimed, for money to use in the improvement of the defendant's property, was a demand upon the defendant; that, when the orator notified Brainerd that he should thereafter take the dividends on the car stock, it was notice to the defendant. This is in accordance with the master's findings, though not expressly so stated by him. The defendant cites the general rule that notice to an agent, while acting within the scope of his authority, and in reference to a matter over which his authority extends, is notice to the principal. The defendant concedes that, upon the master's findings, a demand made upon Mr. Brainerd was a demand upon her; but she insists that the payment of the carstock dividends was made by the treasurer of the company to the orator, and not by the defendant nor by her agent. We think, however, that the master's report must be construed to mean that when Mr. Brainerd, as agent of his wife, ceased making payments upon the note, and the orator said, "I will have to require the dividends upon the stock," the...