Trubel v. Sandberg
| Decision Date | 09 January 1915 |
| Docket Number | 1905 |
| Court | North Dakota Supreme Court |
Rehearing denied February 1, 1915.
Appeal from the District Court of Grand Forks, Cooley, J.
Affirmed.
Barnett & Richardson, John A. Nordin, for appellants.
An agency of express authority to receive payment of security may be shown by other proof than the possession of the securities, and when such authority is shown, the payment is binding on the holder, although the security paid was not in the custody of the agent. Campbell v. Gowans, 35 Utah 268, 23 L.R.A.(N. S.) 414, 100 P. 397, 19 Ann. Cas. 660 and cases.
Mrs Trubel's reliance upon Faber was complete, and he had charge of the entire transaction, as shown by the entire evidence. General Convention of Cong. Ministers & Churches v. Torkelson, 73 Minn. 401, 76 N.W. 215; Dexter v. Berge, 76 Minn. 216, 78 N.W. 1111; First Nat. Bank v. Mutual Ben. L. Ins. Co. 145 Mo. 127, 46 S.W. 615.
A direction to an agent by the owner of paper, that it must be paid when due, is express authority to the agent who negotiated the deal, to receive payment. Hare v. Bailey, 73 Minn. 409, 76 N.W. 213; Ried v. Kellogg, 8 S.D. 596, 67 N.W. 687; Noble v. Nugent, 89 Ill. 522; Phoenix Ins. Co. v. Walter, 51 Neb. 182, 70 N.W. 938; Dunn v. Hornbeck, 72 N.Y. 80; Harrison v. Legore, 109 Iowa 618, 80 N.W. 670; Thomson v. Shelton, 49 Neb. 644, 68 N.W. 1055; Bronson v. Chappell (Townsend v. Chappell), 12 Wall. 681, 20 L.Ed. 436.
The fact that the mortgage company did not have the papers in their possession at the time of the payment by Sandberg is not at all conclusive. It is simply an evidentiary fact. Campbell v. Gowans, 23 L.R.A. (N.S.) 415, note.
There is not sufficient evidence in the case to warrant the court in finding that Faber was the agent of the mortgage company. Hare v. Bailey, 73 Minn. 409, 76 N.W. 213; General Convention of Cong. Ministers & Churches v. Torkelson, 73 Minn. 401, 76 N.W. 215; First Nat. Bank v. Mutual Ben. L. Ins. Co. 145 Mo. 127, 46 S.W. 615; Ried v. Kellogg, 8 S.D. 596, 67 N.W. 687; Harrison v. Legore, 109 Iowa 618, 80 N.W. 670; Thomson v. Shelton, 49 Neb. 644, 68 N.W. 1055; Phoenix Ins. Co. v. Walter, 51 Neb. 182, 70 N.W. 938; Meserve v. Hansford, 59 Kan. 777, 53 P. 835; Wilson v. LaTour, 108 Mich. 547, 66 N.W. 475; Shane v. Palmer, 43 Kan. 481, 23 P. 594; May v. Jarvis-Conklin Mortg. Trust Co. 138 Mo. 275, 39 S.W. 782; Bissell v. Dowling, 117 Mich. 646, 76 N.W. 100; Central Trust Co. v. Folsom, 167 N.Y. 285, 60 N.E. 599; Quinn v. Dresbach, 75 Cal. 159, 7 Am. St. Rep. 138, 16 P. 762.
Henry Moen (W. A. McDonnell, of counsel), for respondent.
The respondent cannot be bound by any apparent authority assumed by the mortgage company unless she herself gave such authority, or her conduct estops her from showing the contrary. Civil Code, § 5784; Humphrey v. Havens, 12 Minn. 298, Gil. 196; Church Asso. v. Walton, 114 Mich. 677, 72 N.W. 998.
"If a negotiable note be made payable at a given place, such provision is so an agreement on the part of the holder to have the note at the specified place of payment; that if the maker be there with the money to make payment, and makes a proper deposit, he is relieved from further obligation to seek the holder; if the holder places the note in any other place, then the person in charge becomes the agent of the holder to rceive the money and deliver the note; but if the note be not so deposited for collection and delivery, then such person has no authority to receive the money." Hollinshead v. John Stuart & Co. 8 N.D. 35, 42 L.R.A. 659, 77 N.W. 89; Budd v. Broen, 75 Minn. 316, 77 N.W. 979; Thomas v. Swanke, 75 Minn. 326, 77 N.W. 981; White v. Madigan, 78 Minn. 286, 80 N.W. 1125; Brown v. Blydenburgh, 7 N.Y. 141, 57 Am. Dec. 506; 20 Am. & Eng. Enc. Law, 2d ed. 1045.
The company was not advised to go ahead and collect the money; but respondent wanted the mortgage paid when due. Trowbridge v. Ross, 105 Mich. 598, 63 N.W. 534.
Agency will never be presumed, but where it is denied the burden of proof is upon him who affirms its existence. Corey v. Hunter, 10 N.D. 12, 84 N.W. 570; Busch v. Wilcox, 82 Mich. 336, 21 Am. St. Rep. 563, 47 N.W. 328; Farrington v. South Boston R. Co. 150 Mass. 406, 5 L.R.A. 849, 15 Am. St. Rep. 222, 23 N.E. 109; Moore v. Skyles, 33 Mont. 135, 3 L.R.A. (N.S.) 136, 114 Am. St. Rep. 801, 82 P. 799.
Apparent authority is that which an agent appears to have from that which he actually has, and not from what he pretends to have, or from his acts and conduct on occasions unknown to and not ratified by the principal. Oborne v. Burke, 30 Neb. 581, 46 N.W. 838; Edwards v. Dooley, 120 N.Y. 540, 24 N.E. 827; Wierman v. Bay City-Michigan Sugar Co. 142 Mich. 422, 106 N.W. 75; Anderson v. Patten, 157 Iowa 23, 137 N.W. 1050; Burchard v. Hull, 71 Minn. 430, 74 N.W. 164; Corey v. Hunter, 10 N.D. 5, 84 N.W. 570.
The mere fact that one negotiates a loan does not imply authority to receive payment. Western Security Co. v. Douglass, 14 Wash. 215, 44 P. 259; Smith v. Kidd, 68 N.Y. 130, 23 Am. Rep. 157; Schenk v. Dexter, 77 Minn. 15, 79 N.W. 526; Trull v. Hammond, 71 Minn. 172, 73 N.W. 644; Hollinshead v. John Stewart & Co. 8 N.D. 35, 42 L.R.A. 659, 77 N.W. 89; Stolzman v. Wyman, 8 N.D. 108, 77 N.W. 285; Dwight v. Lenz, 75 Minn. 78, 77 N.W. 546; Trowbridge v. Ross, 105 Mich. 598, 63 N.W. 534; Walsh v. Peterson, 59 Neb. 645, 81 N.W. 853; Trull v. Hammond, 71 Minn 172, 73 N.W. 642; Chandler v. Pyott, 53 Neb. 786, 74 N.W. 263; Corey v. Hunter, 10 N.D. 5, 84 N.W. 570.
Or where one has formerly collected interest, unless he has in his possession for collection and delivery the notes or papers in the present transaction. Burchard v. Hull, 71 Minn. 430, 74 N.W. 163; Bull v. Mitchell, 47 Neb. 647, 66 N.W. 632; Western Security Co. v. Douglass, 14 Wash. 215, 44 P. 257; Trull v. Hammond 71 Minn. 172, 73 N.W. 642; Porter v. Ourada, 51 Neb. 510, 71 N.W. 52; Joy v. Vance, 104 Mich. 97, 62 N.W. 140; Stolzman v. Wyman, 8 N.D. 108, 77 N.W. 285.
The doctrine of apparent or ostensible authority cannot be invoked in aid of those who have had no knowledge of past transactions; for there can be no reliance upon such dealings in the absence of knowledge. Burchard v. Hull, 71 Minn. 430, 74 N.W. 165; Harris v. San Diego Flume Co. 87 Cal. 526, 25 P. 758; Anderson v. Patten, 157 Iowa 23, 137 N.W. 1050; Dispatch Printing Co. v. National Bank, 115 Minn. 157, 132 N.W. 2; Weidenaar v. New York L. Ins. Co. 36 Mont. 592, 94 P. 1; Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 Ill. 151, 59 L.R.A. 657, 93 Am. St. Rep. 113, 65 N.E. 136.
The defendant Sandberg was the owner of a farm upon which there was a mortgage of $ 1,400, given by a prior owner of the farm to the American Mortgage & Investment Company of St. Paul, Minnesota, who, in turn, had sold it to the plaintiff, Mrs. Trubel. The Investment Company, however, continued to collect the interest from defendant and remit the same. When the principal sum became due, the Investment Company notified defendant that he should pay the same to them, and he, personally, went to their office in St. Paul and paid the full amount due upon the mortgage. The Investment Company embezzled sad funds and shortly thereafter failed. Plaintiff started foreclosure proceedings, which were met by a claim that payment had been made to the Investment Company, as the agent of plaintiff. The trial court held that the Investment Company had no authority to receive the money, as agent of the plaintiff, and defendant appeals to this court and asks a trial de novo. There is not a great deal of dispute as to the law, it being, we think, conceded that the burden of proof is upon the defendant to show that the Investment Company had either actual or ostensible authority to make the collection upon behalf of the plaintiff. It is, we think, admitted that each case must be judged by its own facts, and the decisive question is whether or not, under the facts and circumstances of this case, such authority has been shown.
(1) It is physically impossible to set out all of the evidence in this case and we must content ourselves with merely a few quotations. The Investment Company was in the business of selling mortgages upon real estate. Their profit was usually evidenced by a second mortgage for a part of the interest. In the case at bar, the principal note bore interest at the rate of 6 per cent, and this mortgage was sold to Mrs. Trubel as an investment. She lived in Illinois in the same town where one Mr. Faber was cashier of a bank, and he received a cash commission from the Investment Company for negotiating the sale of such mortgage to her. When she had purchased such loan, she placed the note and mortgage in a tin box to which she retained the key, and left the same in Faber's bank. As the interest coupons became due she clipped the same handed them to Faber, with the request that he collect the money for her. Faber, upon his part, forwarded the coupons to the Investment Company with a similar request. The Investment Company wrote to the defendant to come in and pay the same, which he did. There does not appear to have been any direct correspondence between Mrs. Trubel and either the Investment Company or defendant. Faber had negotiated the sale of several other mortgages for the Investment Company and wrote frequently relative to the entire business. Incidentally, reference is often made to this loan. The principal sum became due February 13, 1912. On February 4th of that year, Faber wrote to the president of the Investment Company, saying in part: ...
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