Hahn v. Alexander

• Decision Date: 28 April 1930
• Docket Number: 12312.
• Citation: 87 Colo. 353,287 P. 855
• Parties: HAHN v. ALEXANDER et al.
• Court: Colorado Supreme Court

287 P. 855

87 Colo. 353

HAHN v. ALEXANDER et al.

No. 12312.

Supreme Court of Colorado

April 28, 1930

Rehearing Denied May 12, 1930.

In Department.

Error to District Court, Washington County; L. C. Stephenson Judge.

Action by Alma Hahn against Bert L. Alexander and others, wherein defendant Bert L. Alexander and two others filed a cross-complaint. Judgment for defendants, and plaintiff brings error.

Affirmed.

Chalkley A. Wilson and Coen & Sauter, all of Sterling, for plaintiff in error.

Anderson, Paynter & Epperson, of Ft. Morgan, for defendants in error.

MOORE J.

Parties here appear as in the lower court.

Plaintiff sought to recover judgment against defendants Bert L Alexander and Leora M. Alexander, makers of a certain promissory note dated January 2, 1917, and due January 2 1924, for the principal sum of $1,500; upon two interest coupons thereto attached, each for the sum of $90 due respectively, January 2, 1923, and January 2, 1924, and to foreclose a certain deed of trust upon land in Washington county, Colo., given as security therefor.

Defendants Bert L. and Leora M. Alexander and the Farmers' State Bank of Brush, Colo., alleging that the notes had been paid, cross-complained for their cancellation. The court entered findings and decree in favor of defendants, to review which this writ is prosecuted.

The note and interest coupons were all made payable to the Interstate Securities Company at its office at Minneapolis, Minn. On March 8, 1917, an assignment thereof was made to John Hahn who remained the owner thereof until his death, May, 1920; thereafter letters of administration upon his estate were issued to one E. F. Russell who, on November 29, 1920, assigned said notes and deed of trust to Margaret Hahn, who on August 8, 1924, assigned the same to the plaintiff herein. The principal and interest were paid to the Interstate Securities Company at its office in Minneapolis. The last two interest payments, for 1923 and 1924, and the principal were not remitted by the company to the plaintiff. In August, 1924, the company went into the hands of a receiver. Neither the Alexanders nor the bank knew of any of the assignments. The record sheet of the Interstate Securities Company shows that the interest coupons covering the years 1918 and 1920 were received by the company prior to the time that payment was made thereon. Correspondence between the company and E. F. Russell, representing the Hahns, reveals that Jacob Hahn owned another loan which he had purchased from the Interstate Securities Company and expressly authorized it to represent him in its collection. The Interstate Securities Company was in the general farm and city loan business and its general custom was to collect for its customers principal and interest of all loans negotiated by it. In the spring of 1923, Bert L. Alexander received a letter from E. F. Russell containing an inquiry as to whether he had paid the interest due January 1, 1922, to which he replied that it had been sent to the Interstate Securities Company. This letter contained no directions as to the making of further payments to the Interstate Securities Company. This, in brief, was the defendants' evidence. The plaintiff offered no proof that the Interstate Securities Company was not acting as her agent or the agent of the respective assignors.

The sole question here presented is one of agency. If the Interstate Securities Company, under the evidence, can be held to be the agent of the plaintiff either expressly, by implication, or estoppel, the defendants should prevail, otherwise not.

Notwithstanding the erudite argument of counsel to the contrary, we believe that this evidence was sufficient to prove, at least, prima facie, that the Interstate Securities Company was the agent of plaintiff by implication and that the equities are undoubtedly with the defendants.

Express agency to collect the Hanson loan, the delivery to the Interstate Securities Company of two interest coupons before maturity, and the fact that no demand was made upon the Alexanders that they pay the principal and interest of the note to the holder thereof, show that the plaintiff was relying upon the Interstate Securities Company as her agent to collect the same.

Plaintiff insists that the Interstate Securities Company was the agent of the defendant and in support thereof cites Stuart & Co. v. Asher, 15 Colo.App. 403, 62 P. 1051; Cowing v. Cloud, 16 Colo.App. 326, 65 P. 417 and Campbell v. Equitable Securities Co., 17 Colo.App. 417, 68 P. 788. In each of these cases the evidence wholly fails to show that the holder of the note authorized his transferor to act as his agent in its collection.

In the Asher Case, supra, Asher and his wife executed a note to the Globe Investment Company which was sold by it to John Stuart & Co., an English corporation, the Globe company guaranteeing its payment. The interest coupons were forwarded by the English company to Kidder, Peabody & Co. at Boston for collection and were paid to the latter company by the Globe Investment Company. The court states at page 407 of 15 Colo. App., 62 P. 1051, 1053: 'None of the coupons were ever delivered to the Globe Company for collection, or surrendered to that company before payment, * * * there never was any arrangement whatever between John Stuart & Co. and the Globe Investment Company for the collection of either interest or principal of this loan. * * * So far as this record discloses, the Globe Company, in collecting the coupons, did not act as agent at all. It was its own coupons which it collected, and in making the collections it acted solely in its own behalf.'

Under these circumstances, the court held that the Ashers could not claim that payments to the Globe Investment Company were payments received by it as agents for the note holder.

In Cowing v. Cloud, supra, Cloud executed his note to the Colorado Securities Company payable at the office of the Importers' & Traders' National Bank in New York City or Denver. The Securities Company sold the note to Cowing, a resident of New York, who presented the coupons at the office of the Importers' & Traders' National Bank of New York City. Cloud alleged payment of the note and interest to the Colorado Securities Company as agent for ...