Moore v. Pollock
| Decision Date | 17 March 1897 |
| Docket Number | 7109 |
| Parties | J. L. MOORE, APPELLEE, v. MONTGOMERY POLLOCK ET AL. APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Dodge county. Heard below before MARSHALL, J. Affirmed.
AFFIRMED.
Frick & Dolezal, for appellants.
Munger & Courtright and G. G. Martin, contra.
On the 8th day of October, 1885, Montgomery Pollock and wife borrowed the sum of $ 1,000 through one Toncray, acting as agent for the Dakota Mortgage Loan Corporation, hereafter called the "Dakota Company," and on said day executed and delivered to Toncray their negotiable note or bond in the principal sum above named, payable to the order of said Dakota Company October 1, 1890. Accompanying said note or bond were coupons, also executed by the Pollocks, for the semi-annual interest upon the principal debt, all payable at the office of the said corporation in Boston Massachusetts. The Pollocks, in order to secure said bond and coupons, on the day first mentioned executed in favor of the payee therein named a mortgage upon the southeast quarter of section 10, township 17, range 9 east, in Dodge county. On the 17th day of November, 1885, the Dakota Company duly sold and transferred said bond and coupons to Fanny C. Palmer, who thereafter indorsed the same to Moore, the plaintiff herein, as trustee, and who prosecutes this action for her benefit. Subsequent to the transactions above noted the Globe Investment Company succeeded to all the rights of the Dakota Company, the principal office and place of business of said corporations being the same, to-wit, Boston Massachusetts, with a branch office at Kansas City, Missouri. Some time after the execution of the mortgage which is the subject of this controversy the Nebraska Mortgage & Investment Company, hereafter called the "Nebraska Company," was organized and succeeded to the business of Toncray, who thereafter acted as the managing officer of said company. Said last named company, as claimed by appellants, became, upon its organization, the agent of the Globe Investment Company for the purpose of making collections of principal and interest of loans negotiated by Toncray, including the loan in controversy for the Dakota Company, and also for the said Globe Investment Company. It is shown that both Toncray and the Nebraska Company made frequent collections for the Globe Investment Company, and that the accruing interest on the loan in question, as the same became due and payable, was collected by one or the other of said parties at their place of business, in Fremont, and remitted to the said Globe Investment Company at Boston, or to the latter's branch office at Kansas City. On the maturity of the principal debt, in the month of October, 1890, the Pollocks arranged to pay and discharge the same by means of a new loan, to be negotiated by Toncray. Pursuant to that arrangement, the Pollocks executed in favor of the Nebraska Company a bond and mortgage for $ 1,500, payable October 1, 1895, with interest from date at the rate of six per cent per annum. On the delivery of the last mentioned securities to Toncray the latter paid to the mortgagors named the sum of $ 465, but whether by means of his personal check or the check of the Nebraska Company does not clearly appear. He also credited the Globe Investment Company with the sum of $ 1,035 on the books of the Nebraska Company, under date of October 4, 1890, and at the same time entered a corresponding charge against the last named corporation. The money was, however, never remitted by the Nebraska Company, which, subsequent to the transaction last mentioned, passed into the hands of a receiver, and is now insolvent. In the month of July, 1891, the second note and mortgage were by the Nebraska Company sold and transferred to Frances E. Walker, who is made a party to this action, and who has filed herein a cross-bill praying for a foreclosure of her said mortgage. Upon proof of facts substantially as above stated the district court for Dodge county found the issues in favor of the plaintiff, and entered a decree of foreclosure in accordance with the prayers of the petition and cross-bill, from which, so far as it relates to the plaintiff's cause of action, the Pollocks appeal.
It may we think, be fairly assumed from the foregoing statement that the relation between the plaintiff and the Nebraska Company was that of principal and agent with respect to the interest coupons. It may also be conceded, for the purpose of the present inquiry, that said company was, when the principal debt matured, authorized to receive payment thereof in behalf of the plaintiff in the usual course of business, even...
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