Walsh v. Peterson
| Decision Date | 09 February 1900 |
| Citation | 59 Neb. 645,81 N.W. 853 |
| Parties | WALSH v. PETERSON. |
| Court | Nebraska Supreme Court |
1. In an action to recover on a lost note, instructions in regard to the burden of proving the loss are not prejudicially erroneous, where it appears conclusively that the note was nonnegotiable and had been delivered to the defendant.
2. Payment by a debtor of the principal of his note, before due, to an agent of the payee, who has neither the possession of the note, nor authority to collect it, is made at the risk of such debtor.
3. Authority to collect interest on a debt does not carry with it an implied agency to collect the principal of the debt before it is due.
4. Where evidence adduced to support a claim of agency is disputed, the question is one of mixed law and fact, for the consideration of the jury, to be aided by instructions from the court.
5. The admission of evidence which could not have influenced the jury in the conclusion reached is, at most, error without prejudice.
6. Where a witness has related a portion of a conversation or transaction on his direct examination, he may be cross-examined as to the entire conversation or transaction.
Error to district court, Lancaster county; Hall, Judge.
Action by Georgia Peterson against Homan J. Walsh. Judgment for plaintiff. Defendant brings error. Affirmed.Chas. O. Whedon, for plaintiff in error.
Ames & Pettis and Ernest C. Ames, for defendant in error.
This action was brought in the district court of Lancaster county by Georgia Peterson to recover from Homan J. Walsh on a lost note. From a verdict and judgment in favor of plaintiff, defendant prosecutes error.
In 1896 Libbie Peterson loaned Walsh $6,000; the loan being evidenced by promissory notes, which were renewed from time to time. The money involved in the transaction was owned in part by the plaintiff and Mrs. Agnes Folsom. The three women were sisters, and lived together in Council Bluffs, Iowa. In May, 1888, the sisters decided to sever their relations as lenders; and the defendant thereupon executed a new note to Georgia for $2,000, due in three years, and one to Mrs. Folsom for $1,000, due in three years. The balance of the $6,000 belonged to Libbie, and was loaned by Walsh, for her, to a Mr. Sholes. The interest on the Walsh notes was payable semiannually, and fell due on the 1st day of May and the 1st day of November. Sholes always paid the interest on his loan to the defendant, who remitted it to Libbie. To her, also, was sent, either by check or draft, the interest on the notes given to plaintiff and Mrs. Folsom. In whatever form the remittances were made, the money was received by Libbie, who paid over to her sisters the amount which they were entitled to receive. When the defendant's notes fell due the time for payment was extended two years, and interest coupons covering the period of extension were made and delivered to the respective payees. When interest payments were made through Libbie to her sisters, she invariably received from them the coupons paid, and transmitted them to Walsh. On January 3, 1893, Walsh had on deposit in the Capital National Bank of Lincoln a large amount of money, and, wishing to reduce his indebtedness, he wrote to Libbie Peterson, stating: On receipt by Libbie of this letter and the check for $3,000, which was drawn on the Capital National Bank, and made payable to her order, she went to the receptacle where the three sisters kept their valuable papers, took out the two notes belonging to Georgia and Mrs. Folsom, and sent them to Walsh. At this time Georgia was seriously ill, and it was not deemed advisable to mention business matters to her. A few days afterwards, however, upon being advised of what had been done, she objected to receiving payment of the principal of the note before it fell due, and declared her intention to go to Lincoln to see Mr. Walsh, and insist that he keep the money until May, when the note would become due. Libbie communicated these facts to Walsh. He then proposed to discount the May coupon, and sent Libbie a check for the same, less the discount. Some question was then raised as to the correctness of the interest computation. Walsh acknowledged that he had made an error, and on January 26th sent Libbie a check “to correct interest due.” Pending these negotiations, Libbie had failed and neglected to deposit the check received from Walsh. On January 21, 1893, the Capital National Bank failed, and passed into the hands of a receiver. The $3,000 check had not been indorsed or delivered to the plaintiff. After the bank failed, Walsh sent Libbie a blank claim, to be by her filled out and filed with the receiver. At the time Walsh sent Libbie the $3,000 check, he also sent her a New York draft issued by the Capital National Bank, which was to cover interest due on the Sholes loan. Walsh suggested to Libbie, when he wrote her regarding the matter of filing a claim with the receiver, that she hold his check until it should be known what depositors would receive, but insisted that the New York draft be filed with the receiver at once, as it was a claim against the bank. The plaintiff, in her petition, declared on a lost note, and demanded judgment. Defendant, after admitting the execution and delivery of the note, denied the other allegations of the petition, and pleaded payment. This plea was denied by plaintiff.
On the trial the court ruled that the burden of proof was on the defendant. This ruling is assigned for error. We think the court was right, and that the defendant is wrong. When the case was submitted to the jury there was no material fact in dispute touching the loss of the note. It was indisputably established that the note, when last seen, was in the hands of the defendant, and that it no longer possessed the qualities of a negotiable instrument.
In our view of the case, the only controverted fact was that of payment, which depended solely on the agency of Libbie Peterson. If she was the duly-authorized agent of plaintiff, with power to receive the $3,000 check from defendant for the principal of the note months before it became due, then the loss must fall on plaintiff; otherwise, on defendant. It appears that all interest payments, but one, made on the notes of plaintiff and Mrs. Folsom, were sent to Libbie Peterson. The remittance in each instance was by a single check, payable to the order of Libbie. The distribution of the proceeds could not be made until she cashed the check. When she paid over to her sisters the interest due them, they turned over to her the coupons, which she would transmit to Walsh. Both Libbie and plaintiff testified that the remittances were made in this manner for the convenience of defendant. Walsh insists, however, that, in receiving the checks and making the distribution,Libbie was acting for plaintiff and Mrs. Folsom. The business relationship of Libbie Peterson to the litigants at the time she received the $3,000 check was therefore the vital issue in the case. The defendant contends that Libbie had been for years the agent of plaintiff in the collection of the interest coupons, and that she was therefore the agent of plaintiff, with power to collect the principal of the note. We...
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