Whelan v. Reilly

• Decision Date: 31 January 1876
• Parties: ANDREW F. WHELAN, Respondent, v. BERNARD J. REILLY, et al., Appellants.
• Court: Missouri Supreme Court

61 Mo. 565

ANDREW F. WHELAN, Respondent,

v.BERNARD J. REILLY, et al., Appellants.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Krum & Madill, for Appellants.

I. The tender was not made to the holder of the notes (Cupples,) although he was known to the plaintiff and known to be the holder, and his residence and place of business were known. Plaintiff's agent, Keely, was informed that Krum & Patrick were not authorized to receive payment of the notes, and that they were not in their hands for collection. (See Berthold vs. Reyburn, 37 Mo., 580; Smith vs. Keels, 15 Rich. [S. C.], 318.)

Plaintiff failed to secure the benefit of his tender, if any, by not paying the money into court. (Daughdrill vs. Sweeney, 41 Ala., 310.)

In this case by the very terms of the deed of trust, the trustee, in case of default in the payment of either of the notes, was authorized to sell. There is therefore no question touching his authority to advertise the property for sale. (Reddick vs. Gressman, 49 Mo., 382.)

Certainly, he incurred an expense (cost of advertising) and he was entitled to compensation for what he had done. But the debtor, at no time, offered to pay the costs and charges of the trustee.

Leverett Bell, for Respondent.

The tender took away the power to sell under the deed of trust for the non-payment of these notes as fully as payment would have done.

By the terms of the deed of trust, the trustee was authorized after a sale, to apply the proceeds upon the principal note, but this only for the purpose of distributing the fund; the principal note did not mature for any other purpose. (Morgan vs. Martien, 32 Mo., 438; Mason vs. Barnard, 36 Mo., 384.)

SHERWOOD, Judge, delivered the opinion of the court.

The case presented is this: In November, 1871, the plaintiff owning certain lots in Stoddard's addition to the city of St. Louis, executed jointly with John Whelan, a promissory note for $2,000 payable three years after date, together with interest notes for $100 each, maturing respectively in 6, 12, 18, 24, 30 and 36 months. The deed of trust which to secure the debt conveyed the lots to the defendant, Reilly, as trustee, was so drawn that in case of default made in the payment of any of the interest notes, etc., then the whole amount of the debt secured should immediately become due and payable, etc., etc.

The note due in six months was paid, but those due in twelve and eighteen months, were not met at maturity. Thereupon, the defendant, Cupples, who had become the owner of the notes by transfer from Clements, to whom they were first made payable, delivered the notes and deed of trust to a legal firm for the purpose of having the property properly advertised, and the sale superintended and completed. The advertisement was duly made, but the petition claims that, before the sale the requisite amount to pay the two interest notes, as well as expenses of advertisement, etc., were tendered to the attorney who held the notes, and also to the trustee prior to the sale, but were refused, and the property sold to the defendant, Cupples. The circuit court set aside the sale, and the defendants are appellants here.

1. Some doubt was raised as to whether the attorney to whom the money was offered, was authorized to receive it, but we think his authority was shown with sufficient clearness. And, indeed, it is fairly inferrable from all the attending circumstances. It is true that the firm of which he was a member, was not told in so many words, to collect the notes, but was directed to take such steps as to the advertisement and sale of the property, as necessarily implied the requisite authority to receive the money, especially when considered in connection with the continued possession of the notes down to and on the day of sale. The only conceivable object the owner of the notes could have had in view was the collection of his debt, unless we indulge the uncharitable conjecture that he desired the sale of the trust property at all events. The attorney himself says that he told Keely at both interviews: “I was not authorized to take his money, unless the note for $2,000 and the expenses of advertising were paid.” But the testimony of Keely and Curtis is not confirmatory as to any statements made restrictive of his authority. Now, if he was authorized to receive the whole debt, his authority, if not specially limited, would clearly embrace the power to receive a part thereof. (Pickett vs. Bates, 3 La. Ann., 627; Williams vs. Walker, infra.)

The fact of the possession of the notes and deed of trust by the attorney, to whose firm they are proven to have been intrusted, was, presumptively, enough to authorize a payment to the possessor of the notes. (2 Greenl. Ev., § 65; Owen vs. Bander, 1 Bos. & Pull., 101; Cone vs. Brown, 15 Rich., 262; Sto. Ag., §§ 98, 104; Williams vs. Walker, 2 Sandf. Ch., 325.) And nothing is observed in the evidence to overthrow the ordinary inference deducible from such possession. And it was certainly competent to make a tender of the money to the person to whom its payment would be lawful.

2. If there were any informalities attendant on the act of tendering the money to the attorney, they were clearly waived by his refusal to receive the amount proffered unless the principal note was also paid. (Berthold vs. Reyburn, 37 Mo., 586; 2 Pars. Cont., 645; Cole vs. Blake, Peake, 179, cas. cit.; Bull vs. Parker, 2 Dowl. (N. S.) 345; Richardson vs. Jackson, 8 M. & W., 298.)

And the same remarks are applicable to the refusal of the tender by the trustee on the day and place of sale. He was tendered $300 which Curtis had in his hand, who offered to pay “the interest notes.” Reilly refused to receive the money, which was ample in amount to pay the interest as well as all legal costs which had accrued, not on the ground that his costs were not tendered, but because the “principal note” was not also paid.

3. It is objected here that, as the holder of the notes, Cupples, was present at the sale, the tender, if otherwise valid, should have been made to him, and could not be made to the trustee. In respect to this, it is sufficient to say that, although the statute as it formerly stood, (R. C. 1845, § 22) did not admit of the reception of the money by the trustee, yet by subsequent statutes the law has been, it would seem, so changed in this particular, as to make payments to a trustee good. (R. S., 1855, p. 1091, §§ 21, 22; Wagn. Stat., 956, §§ 14, 15.) The power of the trustee...