Midland Sav. & Loan Co. v. Sutton

• Decision Date: 12 December 1911
• Docket Number: Case Number: 1464
• Citation: 1911 OK 510,120 P. 1007,30 Okla. 448
• Parties: MIDLAND SAVINGS & LOAN CO. v. SUTTON et al.
• Court: Oklahoma Supreme Court

1911 OK 510

120 P. 1007

30 Okla. 448

MIDLAND SAVINGS & LOAN CO. v. SUTTON et al.

Case Number: 1464

Supreme Court of Oklahoma

Decided: December 12, 1911

Syllabus

¶0 1. PRINCIPAL AND AGENT--Authority of Agent--Questions for Jury. The question of agency and the extent and scope of the agent's authority are to be determined by the jury, as other facts, from the evidence.

2. SAME--Authority of Agent--Questions for Jury. The apparent authority of an agent is to be gathered from all the facts and circumstances in evidence, and is a question of fact for the jury. ( Minn. Thresh. Mach. Co. v. Humphrey, 27 Okla. 694, 117 P. 203.

3. SAME--Estoppel to Deny Agency. One who leads an innocent party to rely on the appearance of another's authority to act for him will not be heard to deny the agency to the party's prejudice. ( U. S. Fid. & G. Co. v. Shirk, 20 Okla. 576, 95 P. 218.)

4. SAME--Authority of Agent--Presumptions. Parties dealing with a known agent have a right to presume that the agency is general, and not special, and the presumption is that one known to be an agent is acting within the scope of his authority.

5. SAME--Authority of Agent--Burden of Proof. The authority of an agent to receive payment for his principal must be proved by the party making payment; but the proof need not be direct, it may be inferred from the circumstances of the case.

6. TRIAL--Questions of Law or Fact--Conflicting Evidence. Where there is evidence reasonably tending to sustain the issues on the part of the plaintiff and the evidence on the part of the defendant conflicts therewith, the determination thereof is for the jury. ( Taylor v. Ins. Co., 25 Okla. 92, 105 P. 354, 138 Am. St. Rep. 906.)

Error from Superior Court, Pittsburg County; P. D. Brewer, Judge.

Action by Ellis Sutton and another against the Midland Savings & Loan Company for the cancellation of a real estate mortgage and the recovery of a statutory penalty for failure to release. Judgment for plaintiffs, and defendant brings error. Affirmed.

F. H. Kellogg and A. J. Bryant, for plaintiff in error

W. H. Fuller and Geo. M. Porter, for defendants in error

ROBERTSON, C.

¶1 The only question in this case is one of agency. While many other questions have been raised in the petition in error, and argued by counsel in their briefs, yet by agreement it is now conceded that the only question is whether or not H. E. Swan was the agent of the plaintiff in error, and authorized by it to accept payment in full from defendants in error, of a note and mortgage for and in behalf of the plaintiff in error. It appears from the evidence that H. E. Swan was the principal officer of the Swan Company, and represented the plaintiff in error at McAlester, as its local agent. Plaintiff in error denies that Swan was its agent for the purpose of collecting in full the loan made to the Suttons. Defendants in errer contend that he was the agent for that, as well as many other purposes, and sets up a number of facts as tending to show that Swan was the agent of the company at McAlester, and authorized by it to accept the payment in question. Among the reasons urged by defendants in error, showing that Swan was the agent for this purpose, are the following: First. The plaintiff in error furnished Swan all necessary blanks for soliciting loans made by their company. Second. The president of the plaintiff in error, on page 96 of the record, states that Swan took applications for loans and presented them to the company for approval and was designated as local collector. Third. The inspectors of plaintiff in error, as shown by the witness Cannington, came and dealt with the Swan Company, and recognized it as the agent of the plaintiff in error. Fourth. The Swan Company solicited loans and H. E. Swan solicited the Sutton loan. Fifth. The money for this loan was sent direct to H. E. Swan by draft made payable to defendants in error and Swan. Sixth. Full instructions were sent to the Swan Company accompanied by the draft, as to how the loan should be applied. No instructions were sent to the Suttons. Seventh. Suttons paid Swan no commissions. Commissions were paid to Swan by the plaintiff in error. Eighth. Swan, under the instructions which accompanied the draft, and in supplemental instructions contained in a letter from plaintiff in error to the Swan Company, December 8th, refused to turn the proceeds of the draft over to Suttons. Ninth. Money was paid to the Swan Company for the benefit of plaintiff in error, not only by Suttons, but by many other people. Tenth. A large number of letters written by the plaintiff in error and set up as exhibits in the case-made show conclusively the agency of Swan, which is broad enough in its scope and extent to include the collection of the loan in controversy. Eleventh. Plaintiff in error claims to have sent a letter to defendants in error under date of June 19, 1908, in which it states that the Swan Company, if it collected from them, would do so as their agent. The defendants in error both specifically and emphatically deny that any such letter was ever received by them.

¶2 This loan was negotiated in June, 1909, and plaintiff's Exhibit A, page 137 of the case-made, which is a letter from the plaintiff in error to the Swan Company, reads as follows:

"The Midland Savings & Loan Company,

"Home Office, Continental Building,

"Denver, Colo., June 9th, 1908.

"(Dic. FEC-M)

"Gentlemen: Herewith we hand you our Kansas City draft No. 22574 for $ 787.20, payable to the order of Ellie Sutton, P. F. Sutton, and yourselves, with voucher attached, account balance due in our loan No. 2600, together with all other papers for the full closing thereof, and you will please follow instructions closely, and oblige.

"We note this money is to be used to build two four-room houses, just alike. The application does not say anything about sheeting and weather boarding. We trust the buildings are going to be sheeted outside and weather boarded both. Before turning over any of the money you must know that the buildings are fully completed in every particular, both outside and in, including painting outside, and then you will not go ahead with the loan or turn over any of the money unless you know of your own knowledge that they have sufficient funds, including our loan, to pay all bills of every kind and character, so that there can be no mechanics' liens filed that might become prior to our mortgage, and you must have every one who furnished either labor or material sign the waiver.

"In regard to the insurance, please see that an equal amount is placed on each house.

"We enclose herein a pencil sketch of the plan that you gave us, and you must see that the porches are built in strict accordance therewith, bath room, etc., and return the plans with the other papers when you are through with them.

"Please have the parties sign the first mortgage bond with their names and initials, Ellie Sutton and P. F. Sutton, before witnesses, exactly as they appear in the body of the instrument; have them sign and acknowledge the mortgage in the same manner; and have Ellie Sutton assign the certificate of stock on the back where indicated by pencil marks, being careful that she signs in every case with her name, Ellie Sutton, so that there will be no break in the chain of title.

"When papers are signed as above, providing acknowledgment on the mortgage is in proper form, you can have the latter filed, and abstract continued showing same.

"If there is nothing else intervening on the abstract, our mortgage thereby being a first lien (and you will not go ahead with the loan or turn over any of the money until the abstract has been continued, and you know of your own knowledge that our mortgage is a first lien in every particular).

"Provided, further, that all taxes are paid, including for the full levy of 1907 (and you will not accept the abstract or turn over any of the money until the certificate of the abstracter as to taxes reads specifically 'all taxes paid including for the full levy of 1907').

"Provided further, that you have been furnished insurance policies, both fire and tornado, for at least $ 1,000.00 each, for three or five years, in some well-established Eastern company, for an equal amount on each house, with our mortgage clauses attached form herewith (and you will not accept the policies or turn over any of the money until they are actually delivered to you with our mortgage clauses attached in proper form).

"Provided further, that the buildings are fully completed in every particular, there being two buildings just alike, being one-story frame residences, solid stone foundations, size of main part of house 14x28, ells 14x14, 4 rooms and bath, 2 closets, 2 porches complete, and under roof, rooms papered and canvassed, 12 feet posts, 10 foot ceilings, inside woodwork complete throughout of yellow pine, yellow pine flooring, all exposed woodwork, both outside and in, painted at least 2 coats, 2 brick chimneys built from brackets, shingle roof, bath room with toilet, closet and bathtub, stationary wash bowl, sewer connection, city water, sink in kitchen, electric lights, cement sidewalk, board walks in main building, macadamized street in front.

"Provided further, that all parties who have furnished either labor or material on the buildings have signed the waiver, and it has been properly sworn to according to the form thereof, and according to the printed instructions thereon.

"On them signing the voucher, you can turn the money over to proper parties, seeing that it is disbursed wholly for labor and material, as far as necessary to pay those bills, having every one who furnished either sign the waiver.

"We enclose passbook showing credit for the June installment of $ 12.80, on the stock deducted from the loan. No interest is charged for June. Full payment of $ 20.80 will be due in July and monthly thereafter. With delivery of passbook please give proper instructions as to

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