Wales v. Mower

• Decision Date: 06 July 1908
• Citation: 44 Colo. 146,96 P. 971
• Parties: WALES et al. v. MOWER.
• Court: Colorado Supreme Court

96 P. 971

44 Colo. 146

WALES et al. v. MOWER.

Supreme Court of Colorado

July 6, 1908

Appeal from District Court, Delta County; Theron Stevens, Judge.

Action by Maggie Mower against L. M. Wales and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Fred N. Dickerson, John Gray, and G. D. Bardwell for appellants.

King &amp Stewart and Porter Plumb, for appellee.

MAXWELL J.

An action to restrain the sale of real estate under a deed of trust, upon the ground that the note to secure which the deed of trust was given had been paid. The complaint alleges that plaintiff (appellee here) is, and since January 31, 1900, has been, the owner of the property; that July 1, 1896, one of plaintiff's grantors executed and delivered to the public trustee of Delta county a deed of trust conveying two lots in the town of Delta to secure payment of a $400 note to Baldwin, one of the defendants; that thereafter the immediate grantor of plaintiff purchased the property and assumed and agreed to pay the debt secured by the deed of trust; that September 30, 1899, plaintiff's immediate grantor (her husband) paid the principal and interest of the debt to Baldwin; that Baldwin agreed to cause the deed of trust to be released; that Baldwin was the authorized agent, in the transaction, of L. M. Wales, one of the defendants (appellant here), who claimed some interest in the indebtedness secured by the deed of trust; and that appellant had caused the public trustee to publish in a newspaper of the town of Delta a notice of foreclosure sale. The separate answer of appellant admits the ownership of the property as alleged in the complaint, the execution of the deed of trust, and the assumption of the indebtedness by plaintiff's immediate grantor; alleges that she was the owner of the $400 note secured by the deed of trust; denies that Baldwin was her agent for any purpose, or to collect the principal of the note; denies that any part of the principal has been paid, or the interest thereon since January 1, 1899, except $42.25 paid April 14, 1903; alleges that July 1, 1896, plaintiff's remote grantor, Harriet H McGranahan, made and delivered her note payable to Baldwin for the sum of $400, payable three years after date, with interest at 8 per cent. per annum, according to six interest coupons of $16 each attached to said note; sets out the note and the interest coupon due July 1, 1899, attached thereto (the note and interest coupons were payable at the office of Baldwin), that July 18, 1896, Baldwin assigned the note and the interest coupons attached thereto to defendant, that since said date defendant has been the owner and in possession of the note and coupons, and that there is now due upon said note and coupons $585.50. There was no reply. The important issue presented by the pleadings was the agency or authority of Baldwin to collect the principal of the note.

Mr. Mower (husband of plaintiff and her immediate grantor) testified that September 30, 1899, he paid Baldwin (by check introduced in evidence) $416; that Baldwin did not have the note; that he said it was back East; that he would send and get it and have the deed of trust released; that he paid the interest prior to the time he paid the note; that the payments were made to Baldwin at his office. Baldwin, the alleged agent, testified, in substance, that he met Mrs. Wales, who was then Miss King, in Connecticut, in 1892; that he had not seen her since that time; that at the time he met her, upon her request, he agreed to loan money for her and secure it on real estate; that she sent him $400, which he loaned in 1893 for three years, secured by a deed of trust; that he collected the interest as it fell due, and sent the interest to Mrs. Wales, who returned to him the coupons therefor; that, when the first loan matured, he collected the principal; that he made the loan to Mrs. McGranahan, taking the note and deed of trust in controversy; that he sent the note to Mrs. Wales shortly after it was made, and had not seen it since, until it was introduced in evidence; that Mr. Mower paid him $416, as testified to by him; that he had not paid that amount to Mrs. Wales. Interrogated as to what his instructions were as to the principal of the loan, he answered: 'I was instructed when it was due to collect the principal and reloan it or return it to her, as she might dictate.'

Plaintiff introduced in evidence, over the objection of appellant, 14 letters written by Mrs. Wales to Baldwin, and received by him in due course of mail; the first dated October 25, 1894, the last dated June 24, 1899. These letters tend to support the inference that Baldwin was the agent of Mrs. Wales to collect the interest and the principal for the purpose of reloaning the same. This is particularly true of Exhibit 14, written June 24, 1899: 'Another six months has rolled around and another three years have past. Inclosed you will find my last coupon. Now, I would say if you want to invest or loan my money for another three years you can do so, providing you give me as good security as you have done in the past. Please let me hear from you at once.' In the absence of anything in the record to show that the above letters refer to any other loan than the one in controversy herein, it is assumed that such was the fact.

The deposition of Mrs. Wales was read in evidence. Interrogated as to whether she had instructed or authorized Baldwin to collect any part of the McGranahan note, the note in controversy, she answered: 'I never did.' She further testified: 'I sent defendant Daniel S. Baldwin $400 that he loaned to Mr. Van Tyle, and it was paid to Mr. Baldwin, who then loaned it for me to Mrs. McGranahan, and I expected a note made payable to me. When the note came, it was made payable to Baldwin, and assigned to me on separate piece of paper attached to the note. The assignment has been lost, and by diligent search I cannot find it. I never authorized Baldwin to collect the interest only one payment at a time when I would send a coupon for collection. I never sent him the note for collection or authorized him to collect it neither did I authorize him to make the note payable to himself.' Cross-interrogatory 10 was: 'Did you not in the month of June, 1899, just prior to the date when said debt became due, write to Baldwin to collect and reloan the money provided he could get as good security as he then had, and, if he could not get as good security as the McGranahan property, to send the money to you? A. No; I never wrote Baldwin to collect the McGranahan note.' The witness was evidently mistaken in her answer to this question, as Exhibit 14, the letter written June 24, 1899, just preceding the maturity of the debt, shows that she wrote Baldwin: 'If you want to invest or loan my money for another three years, you can do so, providing you give me as good security as you have done in the past.' It is quite probable that the witness had forgotten this letter, written by her some four years preceding the time when her desposition was taken. The letters introduced in evidence tend to corroborate Baldwin's testimony to the effect that he was authorized to collect the principal of the note. Authority to reloan the money, given by the letter of June 24th, written before the maturity of the loan, implies authority to collect the loan about to mature. The case was heard by the court without a jury, who made findings of fact and rendered a decree granting a permanent injunction restraining the sale of the lots, decreed the note paid, the deed of trust a cloud on the title, and ordered the public trustee (who was a defendant) to release the deed of trust.

It is said that the court erred in decreeing the note paid and satisfied upon the ground that it destroyed appellant's evidence of a cause of action against Baldwin. Having found that Baldwin was appellant's agent to collect the principal of the note, it necessarily followed that payment to Baldwin...