Home Sav. & Loan Ass'n v. Rounds-Porter Lbr. Co.
| Citation | 1921 OK 9,80 Okla. 201,195 P. 479 |
| Decision Date | 08 January 1921 |
| Docket Number | Case Number: 9764 |
| Parties | HOME SAVINGS & LOAN ASS'N v. ROUNDS-PORTER LBR. CO. et al. |
| Court | Supreme Court of Oklahoma |
¶0 1. Principal and Agent--Loans--Agent of Loan Company or Borrower. Where a loan association appoints an agent to receive applications for loans with instructions as to the signature and acknowledgment of the note and mortgage to be executed by the borrower, and also as to the abstract of title, the payment of the mortgage tax, and the proper assignment, etc., of certificate of stock by the borrower, the person so appointed does not cease to be the agent of the association for the reason that the borrower in making the application for the loan signs an instrument appointing such agent his agent; but where the loan is approved and check issued payable to such agent and the borrower jointly and delivered to the agent and the borrower thereafter indorses the check and leaves the same in the hands of the agent with instructions as to the disbursement of the proceeds of the check, the party so designated by the loan association then becomes the agent of the borrower and is without authority to bind the association by any promise to pay to a third person a claim against the borrower.
2. Appeal and Error--Time for Proceedings. Under Session Laws 1910-11, ch. 18, par. 1, proceedings in error in the Supreme Court must be commenced within six months from the date of the rendition of the judgment appealed from by filing in this court a petition in error.
3. Same-- "Filing" Petition in Error-- Effect of Mailing. Enclosing a petition in error in an envelope addressed to the clerk of this court, with postage prepaid, and depositing the same in the United States mail within time to reach the office of the clerk of this court, is not a compliance with the statute.
J. T. Shipman, for plaintiff in error.
P. L. Thurman, for defendant in error Rounds-Porter Lumber Company. Biddison & Biddison, for defendant in error J. W. Kennedy.
¶1 The Home Savings & Loan Association, with its principal place of business at Bartlesville, Okla., loaned to J. W. Kennedy $ 1,200. In order to borrow this sum, Kennedy subscribed for and purchased 12 shares of the capital stock of the association. A certificate was issued to him evidencing said shares. On the 15th day of May, 1914, there was executed by Kennedy a note for said sum, and to secure payment of said sum he assigned and pledged said shares of stock as collateral security; also executed a mortgage on lot 18, in block 2, of the city of Tulsa. The loan was negotiated through A.M. Hassler, of Tulsa, Okla., the agent of the loan association. In the application for the loan, the borrower, Kennedy, appointed Hassler as his agent and agreed, as compensation for his services in negotiating the loan, that the sum of $ 120 be deducted from the loan, also that he would furnish an abstract showing a perfect title to the property to be mortgaged, and authorized the loan company to remit to Hassler the money on said loan for disbursement. The mortgage covering the real estate was acknowledged and recorded on the 21st day of May 1914. Thereafter the loan company forwarded its check to Hassler, the same being made payable to A. M. Hassler and J. W. Kennedy. The Rounds-Porter Lumber Company had furnished lumber to the owners of the mortgaged premises prior to the purchase of the same by Mr. Kennedy. On June 22, 1914, C. O. Arnold, representing the Rounds-Porter Lumber Company, in company with J. W. Kennedy, went to the office of A. M. Hassler and there, in the presence of Mr. Hassler, Kennedy, in writing, agreed to pay the account of the Rounds-Porter Lumber Company against Sliger and Holmes, the former owners of the property. On the 3rd of August, 1915, the loan association commenced its action against J. W. Kennedy to recover judgment upon the note for $ 1,200 and for the foreclosure of the mortgage. Kennedy admitted the execution of the note and the mortgage, but defended on the ground that the loan was never fully consummated; that he never received all the money and that the plaintiff was not entitled to the foreclosure of its mortgage. On the 19th day of August, 1915, the Rounds-Porter Lumber Company commenced its action against Kennedy, Sliger, Holmes and the Home Savings & Loan Association and alleged that on the 2nd day of March, 1914, the lumber company made a verbal contract with defendants Sliger and Holmes to furnish lumber and other building material to build a house upon lot 18, in block 2, in the city of Tulsa, and that between the 2d day of March and the 22d day of April, 1914, delivered to Sliger and Holmes lumber and other building material of the value of $ 626.35. That at that time Sliger and Holmes owned the legal title to the lot, which they afterwards transferred to Kennedy subject to the lien of the lumber company; that Kennedy assumed said indebtedness of $ 626.35 and agreed in writing to pay the same. It was further alleged that concurrently' with the sale and transfer of the premises to Kennedy the loan was negotiated from the defendant Home Savings & Loan Association. It was further alleged that at the time of the execution of the mortgage by Kennedy and the acceptance thereof by the loan association the Rounds-Porter Lumber Company had a prior lien upon the premises for $ 626.35, which fact was well known to the loan association, and that it was thereupon agreed by and between the RoundsPorter Lumber Company, J. W. Kennedy, and the loan association that, in order to discharge the lien of the Rounds-Porter Lumber Company, Kennedy would assign and set over to the lumber company out of said loan the sum of $ 626.35, and thereupon Kennedy did assign and set over to plaintiff said sum out of said loan, then in the hands of the loan association, and that the association then agreed that it would accept such assignment, and did accept such assignment, and agreed to pay for and discharge the claim and lien of the Rounds-Porter Lumber Company. Judgment was prayed against Kennedy, Sliger, Holmes, and the loan association for $ 626.35, with interest thereon, together with the attorney's fee of $ 100. The cause wherein the Home Savings & Loan Association was plaintiff and J. W. Kennedy was defendant was consolidated with the cause wherein Rounds-Porter Lumber Company was plaintiff and Sliger, Holmes, Kennedy, and the loan association were defendants. The cause so consolidated came on for trial in the district court of Tulsa county on the 12th day of September, 1917. In the case of the loan association against Kennedy the jury returned a verdict in favor of the plaintiff for $ 1,200. In the case of the Rounds-Porter Lumber Company against the loan association the jury returned a verdict for the plaintiff in the sum of $ 626.35 and $ 50 attorney's fees. The loan association filed motion for a new trial. The assignments of error relied upon are that the court erred in overruling plaintiff in error's motion for new trial; the court erred in giving instructions Nos. 2, 5, and 7; and the court erred in accepting the verdicts of the jury as they were rendered; and the court erred in its constructions of the verdicts.
¶2 The first error relied upon by the plaintiff in error and discussed is as to the amount of recovery. It is claimed by the plaintiff in error that it was entitled to the interest on the loan from October 15, 1914, less the credit of $ 15, interest paid to January 26, 1915, whereas the court allowed interest only from August 1, 1915. The evidence is undisputed that the payments of the loan were to be $ 24 monthly, and that five monthly payments were made and one payment of $ 15 paid January 26, 1915. The date of the note was May 15, 1914. From May 15th to October 15, 1914, the installments provided for in the loan were paid, amounting to $ 120. The withdrawal value of the stock carried by Kennedy seems to have been valued at $ 36.75. The interest for the five months at 10 per cent. during that time would have been $ 24, whereas the borrower had paid $ 120. It is not necessary to differentiate as to the items going to make the difference between $ 120, the amount paid, and $ 24, the interest at 10 per cent., as the loan being made for six years, and the interest being paid annually, then at the end of six years the interest would amount to $ 720, which, added to $ 1,200, would make $ 1,920. The payment of $ 24 a month, provided for in the loan, at the end of six years would amount to $ 1,728, making a difference of $ 192, being less than if the interest had been paid annually. Therefore, when default was made on October 15, 1914, Kennedy was entitled to the withdrawal value of his stock, $ 36, together with the interest, $ 15, paid January 26, 1915, which would pay the interest to March 18, 1915; therefore, the loan association would be entitled to the interest from the last named date at 10 per cent. instead of from August 1st, as instructed by the trial court, the difference being $ 43.60, which sum should be added to the judgment in favor of the association against Kennedy. The serious question involved in this case is as to the liability of the loan association to the Rounds-Porter Lumber Company. It is claimed by the latter that on the 22d day of June, J. W. Kennedy assumed the indebtedness for $ 626.35, being the amount due from the former owners of the mortgaged premises, and agreed in writing to pay the same; that this transaction occurred in the office of A.M. Hassler, agent, as claimed by Rounds and Porter, of the loan association, and that Kennedy assigned to the Rounds-Porter Company this amount in the check issued to Kennedy covering the loan, and that, Hassler having promised to pay this sum out of the check then in his possession, this was equivalent to a promise by the loan association, as Hassler was their agent and was clothed with authority to bind the association in this...
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