Park v. Cross

• Citation: 76 Minn. 187,78 N.W. 1107
• Parties: PARK v. CROSS et al.
• Decision Date: 09 May 1899
• Court: Supreme Court of Minnesota (US)

76 Minn. 187

78 N.W. 1107

PARK

v.CROSS et al.

Supreme Court of Minnesota.

May 9, 1899.

Appeal from district court, Clay county; D. B. Searle, Judge.

Action by Derretta Park against Martha H. Cross and others. Finding for plaintiff. From an order denying a new trial, Cross appeals. Reversed.

Syllabus by the Court

Authority from the payee to collect and receive, as his agent, the interest and principal of the debt, is not authority to collect or receive either the interest or principal before it is due. F. H. Peterson, for appellant.

W. B. Douglas and J. B. Campbell, for respondent.

CANTY, J.

This is an action to restrain the foreclosure of a mortgage under the power of sale, on the ground that plaintiff, the mortgagor, had partly paid the mortgage debt, and had tendered payment of the balance due. On the trial, the court, sitting without a jury, found for plaintiff, and defendant appeals from an order denying a new trial.

The mortgaged premises is city property situated in Moorhead, Minn. The note and mortgage are dated March 18, 1890. The note is for the sum of $800, and was due in five years after date. The interest, at the rate of 8 per cent., was payable semiannually. Plaintiff applied for a loan to one Titus, a loan agent residing at Moorhead, and he procured the loan from defendant, a resident of New York. Her husband acted as her agent in making the loan, and he sent the money to Titus, who paid it over after said note and mortgage were executed. He then had the mortgage recorded, and sent it and the note to defendant's husband, at New York. Defendant has ever since retained the principal note. As the coupon notes fell due, she sent them to Titus for collection. The note was, by its terms, payable at the office of Titus, in Moorhead. Until 1894, plaintiff paid the semiannual interest to Titus shortly after it came due. Sometimes Titus had the interest coupon for collection when the payment was made, and at other times he did not, and then he would give plaintiff a receipt for the money, and, when the coupon arrived, he would exchange the coupon for the receipt. Plaintiff paid Titus the following sums, to be applied on the principal note: March, 1891, $100; April, 1891, $301; and April, 1893, $300. On each occasion, Titus gave her a receipt for the amount paid, but he never forwarded the amount paid to defendant, and never notified her that he had collected it, and neither she nor her husband ever knew until August, 1894, that any such payment had ever been made. When plaintiff made these payments, she never inquired whether Titus had the securities in his possession, and did not know whether he had or not. After making these payments, she supposed that she was entitled to a reduction of interest, but she still continued to pay the full amount of interest called for by the coupons. She ‘mentioned it to Mr. Titus, and he said it would be all right.’ She testified that she supposed that Titus was loaning his own money, and that he himself owned the note and mortgage. But she also testified that on three or four occasions, when she paid the interest, he did not have the coupon, and that she subsequently...