Klindt v. Higgins

• Decision Date: 09 October 1895
• Parties: KLINDT v. HIGGINS ET AL.
• Court: Iowa Supreme Court

95 Iowa 529

64 N.W. 414

KLINDT

v.HIGGINS ET AL.

Supreme Court of Iowa.

Oct. 9, 1895.

Appeal from district court, Des Moines county; James D. Smythe, Judge.

Plaintiff brings this action in equity to recover upon a promissory note executed August 4, 1888, by the defendants, for $800, payable to Mariah Decker or order, on or before three years after date, “at the office of Theo. Guelich, in Burlington, Iowa, * * * with 8 per cent. per annum, payable annually,” and for decree foreclosing a mortgage given to secure the payment of said note. Defendants answered, denying any indebtedness, and alleging that they had fully paid said note to Theodore Guelich, the agent and attorney for the owner of said note, duly authorized to receive such payment; also that the plaintiff held said Guelich out as her attorney and agent for the purpose of receiving payment of said note, wherefore she is now estopped from denying such agency and authority. By way of cross petition defendants asked, upon the facts alleged, for the surrender and cancellation of said note and mortgage. Plaintiff, in answer to the cross bill, avers that she bought the note and mortgage from the administrator of Mariah Decker; that she retained possession thereof, “except when they were in possession of said Guelich, about August, 1892, when she left them for collection of interest.” She denies that Guelich was her agent and attorney, except for the collection of interest, and denies that the note has been paid, or any part thereof, except interest. Decree was entered in favor of the plaintiff for $712.40, including $41.90 attorney's fees, and for costs. Defendants appeal. Affirmed.T. J. Trulock and Stutsman & Stutsman, for appellants.

Power & Huston, for appellee.

GIVEN, C. J.

1. There is no question but that the defendants did pay the full amount of the notes sued upon to Theodore Guelich. The sole contentions are whether Guelich had authority from the plaintiff to receive such payments, and whether, under the facts, the plaintiff is now estopped from denying that he had such authority. Theodore Guelich, an attorney at law, was engaged in the law, real-estate, loan, and collection business. He received sums of money left with him for investment, and invested the same in the name of his clients, keeping proper accounts thereof in his books. On August 4, 1888, he negotiated a loan of $800 to the defendants for Mariah Decker, taking from the defendants the note in suit, and a mortgage upon their homestead to secure the payment of the same. On August 4, 1889, defendants paid to Guelich, at his office, the interest to that date. On October 21, 1889, the plaintiff transferred to Mr. Guelich a deposit of $1,950, which she had in bank, for the purpose of having said money invested by Mr. Guelich for her. Of this sum Mr. Guelich made several loans for the plaintiff. Mariah Decker having died, the note in suit came into the hands of her administrator, who, desiring to have the money thereon, did, on the 2d day of December, 1889, indorse said note to the plaintiff, Guelich then paying to him $816.75 of said money of the plaintiff's therefor. On February 6, 1890, Guelich rendered a statement to plaintiff, showing the investments made by him of her money, including the Higgins note and mortgage. On, or soon after, the maturity of interest each year the defendants paid the same to Guelich at his office, taking his receipts therefor. They also paid to him sums at different times equal to the full amount of principal. Shortly before the maturity of the note they received notice from Guelich of the time it would mature, and on August 29, 1892, they paid to him, at his office, $172, taking his receipt therefor. Plaintiff testifies that she was advised by others “to place my money with Guelich to loan,--to take care of it for me. I was to have seven per cent., and supposed he was to have all over that. * * * When I say I took my money to Guelich to loan, I did not mean he should keep it loaned always; that he should loan it out then.” It is apparent that the placing of the money was left to the discretion of Guelich, that there was no limit as to the time for which loans should be made, and that Guelich was to have all that he should receive over 7 per cent. as compensation. The purchase of this note and the payments of interest were duly reported by Guelich to the plaintiff, and it appears that soon after the maturity of each year's interest she took the note with her, and called upon Guelich for the interest, as she says: “Because I knew the people got their money there, and they would go there to pay my interest, and I went to get it. * * * The persons that borrowed the money would pay the interest for the loan of the money; that Mr. Guelich loaned it to them, and parties would go there to pay; and I went there to get my interest. I talked with Guelich about it.” Guelich's books show the different transactions in account with plaintiff, the payments of interest and principal made by the defendants, and that the interest received, less 1 per cent., was paid to plaintiff; but it does not appear that Guelich accounted to the plaintiff for the payments of principal, nor that the plaintiff ever demanded or desired the payment of the principal. Plaintiff testifies: “I got the interest three times. I went there to the office to get it the first two years. I went the other years, but did not get it the last year. I didn't get it, but got it afterwards, as I have explained. I went for my interest two days after it was due, and Guelich said it wasn't there, and for me to leave my note. I went...