Western Nat. Bank v. Jenkins
| Decision Date | 28 June 1917 |
| Docket Number | 42. |
| Parties | WESTERN NAT. BANK v. JENKINS et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.
Suit by the Roland Realty Company and Samuel H. Barton against Robert H. Jenkins, Alfred Jenkins Shriver, individually and as trustee, Howard C. Wilcox, trustee, the Western National Bank, and Edwin T. Dickerson. From the decree, the Western National Bank appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER STOCKBRIDGE, and CONSTABLE, JJ.
Frank B. Ober and Joseph C. France, both of Baltimore, for appellant.
Vernon Cook, of Baltimore, for appellees.
The Roland Realty Company, a building corporation, hereinafter called the Realty Company, executed and delivered a mortgage to Alfred Jenkins Shriver on certain property described in the mortgage to secure the payment of three negotiable promissory notes made by the mortgagor to the order of the mortgagee. One of these notes was for the sum of $62,700, and payable one year after its date; the other two being for the interest to accrue on said principal sum, each being for the sum of $1,881, and payable in 6 and 12 months, respectively after date. The notes and mortgage were dated the 1st day of August, 1911, and the mortgage was recorded among the land records of Baltimore city. A second mortgage on the property, bearing the same date, was executed by the Realty Company and delivered to Alfred Jenkins Shriver to secure the payment of the sum of $5,000 and interest thereon. The circumstances, briefly stated, under which these mortgages were made, are as follows:
On July 11, 1911, an application was made by the Realty Company to Alfred Jenkins Shriver for a mortgage loan on property located on the north side of Thirty-Seventh street, in the city of Baltimore, between Chestnut and Elm avenues. The application stated that it was proposed to erect upon the land a certain number of dwellings therein described, which it was represented in the application would cost between $2,100 and $2,200 each, and further that the actual cost of the land to the appellant was $15,333.33. Certain representations as to improved land and sales in the locality were also made. The amount of the loan applied for was $66,000, at 6 per cent., payable semiannually, for one year and the appellant agreed to give a bond of a Baltimore City Bonding Company for the amount of the mortgage for the completion of the buildings. It also agreed to pay a commission of 5 per cent. on the amount of the mortgage loan and a title fee, the amount of which was not at that time fixed, but which was subsequently agreed to be 1 per cent. of the mortgage loan. The applicant further stated that it expected to provide the additional money, over and above the mortgage loan, necessary to complete the buildings from the sale of other real estate and general credit. This application was made by Charles L. Fulton on behalf of the Realty Company. Mr. Shriver brought the application to the attention of Robert H. Jenkins, who agreed to make a mortgage loan of $62,700, instead of $66,000, as applied for; it having been found that the dwellings proposed to be built could be erected for a less sum than that stated in the application. This reduced amount was satisfactory to the applicant, and it agreed to accept it. The loan was to be put through either on July 26 or August 1, 1911. There is some conflict in the evidence upon this, but it is not of any importance in this case.
The Realty Company was not able to give the completion bond provided for in the contract, but it gave a bond with individual sureties. It was agreed that Mr. Jenkins should draw his checks to the order of the mortgagor for the amount of the loan, who in turn should pass the money over to Alfred Jenkins Shriver, as trustee, for deposit as a special fund in the Western National Bank, and applied by him to the construction of the buildings in accordance with a schedule of payments agreed upon by the parties. The Realty Company did not have title to the land on July 26, 1911, but it expected to perfect its title by August 11, 1911. As Mr. Shriver was about to leave the city, the following things took place on July 26, 1911, in connection with the loan:
On that day two checks were drawn by Robert H. Jenkins as follows:
This check was indorsed as follows:
The indorsements on this check were as follows:
The checks were delivered to the Realty Company, and Z. Bond Evans, whose indorsements appear thereon, was a clerk in Mr. Shriver's office. These checks were deposited in the Western National Bank under the above indorsements and were paid, and the proceeds carried to the credit of Mr. Shriver, as trustee, in that bank. On the deposit book of the bank the following notation appears:
The bank agreed to pay 3 per cent. on the deposits. The two mortgages were executed on July 26, 1911, and held by direction of Mr. Shriver until August 1, 1911, when it was expected that the mortgagor would then have title, and the transaction would be finally closed. Upon the return of Mr. Shriver to the city about September 17, 1911, he found that the transaction had not been put through as previously arranged. Mr. Robert H. Jenkins became apprehensive about the loan, and expressed a desire to call it off. After a number of interviews between Alfred Jenkins Shriver and Charles L. Fulton, the Realty Company entered into the following agreement on October 4, 1911, under which the loan was made:
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