May v. Jarvis-Conklin Mortgage Trust Company

• Decision Date: 23 March 1897
• Parties: May, Administrator, et al. v. Jarvis-Conklin Mortgage Trust Company et al., Appellants
• Court: Missouri Supreme Court

39 S.W. 782

138 Mo. 275

May, Administrator, et al. v. Jarvis-Conklin Mortgage Trust Company et al., Appellants

Supreme Court of Missouri, First Division

March 23, 1897

Appeal from Livingston Circuit Court. -- Hon. E. J. Broaddus, Judge.

Affirmed.

Beardsley & Gregory for appellants.

(1) This is a suit in equity. The court will grant such relief as should have been granted by the trial court. Blount v Skratt, 113 Mo. 54; Barrett v. Davis, 104 Mo 549; McElroy v. Maxwell, 101 Mo. 294. Foster paid the note to Cross, who had not the possession thereof, and in fact, no authority to collect it. Such payment was made at the risk of the party making it. Padley v. Neill, 35 S.W. 997; Smith v. Kidd, 68 N.Y. 130; Jones on Mtgs. [3 Ed.], sec. 964; Joy v. Vance, 104 Mich. 97; Trowbridge v. Ross, 63 N.W. 534; Mechem on Agency, secs. 373, 379; 2 Daniels on Negotiable Instruments, sec. 1227; Security Co. v. Graybeal, 85 Iowa 543; Brewster v. Carnes, 9 N.E. 323; 103 N.Y. 556. (3) There was no evidence of such a course of dealing between the parties as would warrant a presumption of authority in Cross to collect. Donham v. Hahn, 30 S.W. 114. (4) The collection of other securities or the interest or part of the principal debt are insufficient to raise any implied authority to receive payment of balance of principal. Smith v. Kidd, 68 N.Y. 130; Cox v. Cutter, 28 N.J.Eq. 13; Garrels v. Morton, 26 Ill.App. 433.

Sheetz, Miller & Wait for respondents.

(1) Defendants were responsible for the acts of their agents. Milstead v. Equitable Co., 49 Mo.App. 191; Larsen v. Lombard Co., 53 N.W. 179; McLain v. Fickle, 62 N.W. 753; State v. Bristol Savings Bank, 18 S.E. 533. (2) It is not what power Cross had, but what third persons had a right to assume. Nicholson v. Golden, 27 Mo.App. 132; Austrian v. Springer, 34 Am. St. Rep. 350. (3) And in such case it is wholly immaterial whether he had the note in his possession. Sharp v. Knox, 48 Mo.App. 169; Ferneau v. Whitford, 39 Mo.App. 311. (4) And any construction given by the agent and the maker to an instrument (in this case the application for a loan and the note) binds the principal. Gibbon v. Gunnel, 48 N.W. 250; Reisenleiter v. Lutherische, 29 Mo.App. 291. (5) When the agent has the right to take applications and has company's blanks and is acting as its agent, it is estopped from denying the agency. Thomas v. Hartford Insurance Co., 20 Mo.App. 150; Union Stock Yard Co. v. Mallory, 48 Am. St. Rep. 341. (6) His authority need not be proven by contract of agency. Franklin v. Insurance Co., 52 Mo. 461; Brooks v. Jameson, 55 Mo. 512. (7) Agency may be inferred from circumstances. Hull v. Jones, 69 Mo. 587; Mitchum v. Dunlap, 98 Mo. 418-421. (8) It is a question for the jury. Black River Lumber Co. v. Warner, 93 Mo. 374; Hamilton v. Home Insurance Co., 94 Mo. 353. (9) Because trial judge sees the witnesses equity courts will defer somewhat to the finding of trial judges. Mathias v. O'Neill, 94 Mo. 520. (10) Defendant was entitled to no interest. R. S. 1889, sec. 5970. (11) What is usury? "Any shift or device to obtain greater interest is usury." Glisson v. Newton, 1 Am. Dec. 559. (12) Antedating a note is usury. Williams v. Williams, 15 N. J. Law, 255. (13) Having blanks, deeds, applications, certificates, etc., is persuasive evidence that Cross was their agent. Summerville v. H. & St. Joe Railroad, 62 Mo. 391. (14) After revocation of authority the principal is still bound by all his acts till notice to third persons is given of the revocation. Eadie v. Ashbaugh, 44 Iowa 519. (15) A note unless drawn with interest from date draws interest from maturity. Nicholson v. Golden, 27 Mo.App. 132; 29 Mo.App. 291, above cited.

Macfarlane, J. Barclay, P. J., and Brace, J., concur; Robinson, J., absent.

OPINION

Macfarlane, J.

This suit is to enjoin the sale of land under a deed of trust on the ground that the debt secured thereby had been satisfied.

The suit was commenced by Thomas W. Foster against said trust company, as beneficiary in the deed of trust, and the sheriff of Livingston county, substituted trustee, who was proceeding to make the sale. The petition charges that on the first day of January, 1886, he executed his note to defendant trust company for $ 250, and to secure the same on that day he also executed and delivered to A. W. Berkley as trustee a deed of trust with power of sale on two hundred and forty acres of land in Livingston county, describing it. He charges the payment of the note, but that defendants had advertised and were about to sell the land under the deed of trust. He prayed an injunction and general relief. The answer was a general denial. A temporary injunction was granted and the case was tried upon the answer and a motion to dissolve the injunction. Prior to the trial Foster died and the cause was revived in the name of his administrator and heirs.

As a result of the trial the court found that the deed of trust "ought not to be foreclosed, but should be canceled and set aside and that the debt secured thereby has been fully paid and discharged." The decree was as follows: "It is therefore ordered, adjudged and decreed by the court that the injunction heretofore filed in this cause, restraining and inhibiting defendants from selling said lands under said deed of trust, and the same is hereby made perpetual, and defendants, their heirs, administrators and assigns are hereby restrained and forever inhibited from further proceeding to foreclose said deed or make any claim to said lands by reason thereof and that said deed be satisfied of record, and in case of the neglect or refusal of defendants so to do, for thirty days after the determination of this cause, then this decree may be filed as the satisfaction thereof. It is further ordered that plaintiffs recover of defendants their costs in this behalf expended and that execution issue therefor."

Upon the trial it was shown that Jarvis, Conklin & Company, a partnership, were loan agents having their place of business at Kansas City. Among others they secured loans for the Mutual Benefit Life Insurance Company, of Newark, New Jersey. Persons desiring to borrow money were required to fill up printed forms of applications, as a basis for the negotiation of a loan. These blank applications were furnished to local loan agents throughout the country. These local agents found persons desiring to borrow money, and had them fill out the blank applications, which were forwarded to the firm at Kansas City. The commissions of the agents were paid by the borrower, and which said firm divided with the local agent who took the applications.

J. C. Cross was a local loan agent residing and doing business at Chillicothe, in Livingston county, Missouri. Thomas W. Foster owned a farm of two hundred and forty acres in the same county. Cross was furnished with blank applications by said firm, and had assisted in making several loans. Foster desired to borrow $ 2,500 and offered to secure the same by deed of trust on his land. In May, 1886, he made application to Cross who had him fill out and sign one of the blank applications, which was forwarded to the firm at Kansas City.

The application opens as follows: "I, Thomas W. Foster, the undersigned, of Cream Ridge P. O., Livingston county, State of Missouri, do hereby appoint Jarvis, Conklin & Co., Kansas City, Missouri, as my agent to procure for me a loan of twenty-five hundred dollars ($ 2,500), for the term of five years at nine per cent per annum, to be paid annually, secured by first mortgage or trust deed upon the following described real estate situate in the county of Livingston and State of Missouri," and follows with a description of the land, its quality, location, improvement and value, and much other information which is not material to any inquiry on this appeal. After agreeing to furnish abstracts of the title at his own expense, Foster agrees as follows: "I also agree to pay to Jarvis, Conklin & Co., or J. C. Cross, their agent, a commission of four per cent in payment for their services in negotiating this loan, if accepted by them."

The said firm, as agent of said insurance company, agreed to furnish the money on the terms stated in the application. Foster thereupon executed his note for $ 2,500, and a deed of trust on the land to secure the same bearing interest at seven per cent. In order to pay a commission to his agents, he executed and delivered to Jarvis, Conklin & Co. his note for $ 250, dated January, 1886, payable at their office in Kansas City, two years after date, and secured the same by a second deed of trust on the same land. These transactions were completed in August, 1886. The firm paid Cross $ 62.50 as his commission for the services rendered them.

Some time in February, 1890, there was paid to Cross the sum of $ 300, which the evidence tends to prove was accepted as full satisfaction of the note. The note was not at the time in possession of Cross, nor was it ever delivered up to Foster, nor was satisfaction of the deed of trust ever entered upon the record. Defendant, the trust company, is the successor of the firm of Jarvis, Conklin & Co., and succeeded to their rights in the note and deed of trust. Defendant insisted upon foster paying the note, and upon refusal they ordered the land sold under the deed of trust. To prevent the sale, this suit was commenced.

I. The question of the jurisdiction of the Supreme Court to hear this appeal has been suggested by members of this court. As the question is an important one to the members of the bar, we think it advisable to give our reason for taking jurisdiction:

The object of this suit is to perpetually restrain the defendants from making a sale of real estate under a deed of trust. The ground upon which the...