Koen v. Miller

• Decision Date: 14 October 1912
• Citation: 150 S.W. 411,105 Ark. 152
• Parties: KOEN v. MILLER
• Court: Arkansas Supreme Court

150 S.W. 411

105 Ark. 152

KOEN v. MILLER

Supreme Court of Arkansas

October 14, 1912

Appeal from Benton Chancery Court; T. H. Humphreys, Chancellor affirmed.

STATEMENT BY THE COURT.

This is an action by an assignee of a note and mortgage against the maker to recover judgment upon the note and to foreclose a mortgage given upon real estate to secure the same.

The maker relied upon the defense of payment to defeat the action. The evidence on the part of the plaintiff, B. L Miller, tends to show a state of facts substantially as follows:

On the 18th day of April, 1908, the defendant, F. B. Koen, executed a negotiable promissory note to the Bank of Siloam for $ 2,200. The note was due twelve months after date, and bore interest at the rate of 10 per cent. per annum from date until paid, and was payable at the Bank of Siloam, Siloam Springs, Arkansas. On the same day he gave a mortgage on certain real estate, situated in Benton County, Arkansas, to secure said note. On the 21st day of May, 1908, the Bank of Siloam, for value received, by an instrument in writing assigned said mortgage to the plaintiff, B. L. Miller. On the same day the note was indorsed by the bank to Miller, and the note and mortgage were delivered by the bank to Miller. Miller was a stockholder in the bank, and had a private box in the vaults of the bank where he kept his papers. He placed the note and mortgage in his private box, and they thereafter remained in his possession until the bank failed. On the 8th day of August, 1910, two days after the bank had closed its doors, Miller took the note and mortgage from his private box in the bank and placed the same in the hands of the State Bank, of Siloam Springs, for collection. Koen told the cashier of the bank, when the note was presented to him for collection, that he had already paid the principal and interest to the Bank of Siloam, and declined to pay it to the State Bank. Upon being pressed for payment by the cashier of the State Bank, he finally paid the interest due upon an agreement that the time of payment of the principal of the note should be extended for another year. He made the payment of the interest under protest. On August 18, 1909, Koen paid to the Bank of Siloam $ 300.65, being the amount of interest then due on the note.

F. B Koen, one of the defendants, testified substantially as follows:

"I executed the note and mortgage involved in this suit and paid the interest in August, 1909, to the officers of the Bank of Siloam. On March 29, 1910, I sent the Bank of Siloam a draft for $ 3,000 to cover my indebtedness, and told them to put the balance to my credit. Afterwards I went to the bank to get my note and mortgage, and they told me they would have to send a release to Bentonville, but that they would give it to my wife the first time she came in. I did not know that this had not been done until I got a notice from the State Bank in September, 1910, that the note was in its hands for collection. I then went to Davey, the cashier, and Morris the president, of the Bank of Siloam, and they both admitted that I had paid the note to their bank. I never knew that B L. Miller had any interest in the note and mortgage. When I sent the bank the $ 3,000, I authorized it to turn the note and mortgage over to my wife. I thought I would have a balance still in the bank, and thereafter drew checks against that." When the bank failed, it appeared that F. B. Koen had on deposit the sum of $ 769.26, and that he presented his claim therefor to the receiver of the bank. In regard to this, however, Koen testified that at the time he made proof of his account to the receiver, he supposed that amount was due him after paying off his note and mortgage, that he did not then know that Miller claimed to be the assignee of the note and mortgage, and supposed that the bank had paid off the note and mortgage with the $ 3,000 draft which he had sent them in March, 1910.

R. S. Morris, president of the Bank of Siloam, corroborated Koen in his statement that he paid the Bank of Siloam the note and mortgage involved in this suit. Morris also stated that the note and mortgage had been assigned to B. L. Miller, and that the bank was his agent in negotiating loans and collecting interest. Miller testified that he had authorized the Bank of Siloam to collect the interest on said note and mortgage, but denied that it had any authority to collect the principal. He said that he took the note and mortgage into his possession when the same was assigned to him, and that the Bank of Siloam never thereafter had them in its possession.

The chancellor found in favor of the plaintiff, B. L. Miller, and a decree was entered accordingly. The defendants, F. B. Koen and Eddeth Koen, have appealed.

Decree affirmed.

R. F. Forrest, for appellant.

The evidence clearly demonstrates that the Bank of Siloam was appellee's agent not only for the collection of the interest but also the principal sum named in the note, and he is bound by the acts of his agent.

Walker & Walker, for appellant, in a supplemental brief.

Miller was, at the time he claims to have purchased the note and mortgage sued on, a stockholder in the Bank of Siloam. The evidence does not disclose that appellant and his wife had any notice, or were put in possession of any facts to place them on notice, that appellee was the owner of the note and mortgage. By his failure to record the assignment of the mortgage, his failure to notify Koen of his claim of ownership of note and mortgage, by leaving same with the bank and permitting it to collect the interest and to receive the principal when due, Miller is estopped from denying that the bank was his agent. 16 Cyc. 726; Id. 772, and cases cited in note 16; Id. 775-6, notes 23, 25, 26 and authorities cited.

Whether the Bank of Siloam had authority from Miller or not to collect the principal of the note and mortgage, he can not recover if the bank was possessed of apparent authority. 49 Ark. 330; 96 Ark. 456; Id. 505; 90 Ark. 104; 50 Ark. 383; Wharton, Agency, §§ 405-466; Ewell's Evans, Agency, 397 et seq.; 2 Kent's Com. 632; 2 Smith's Leading Case 118, and notes; 44 Ark. 348.

Williams & Williams, for appellee.

The evidence shows that appellant acknowledged the debt and made a payment on it, after the failure of the Bank of Siloam. It further shows that he did not pay the note and mortgage to appellee nor the...