Wilcox v. Carr

• Decision Date: 31 December 1888
• Citation: 37 F. 130
• Parties: WILCOX v. CARR et al.
• Court: U.S. District Court — Southern District of Iowa

37 F. 130

WILCOX v. CARR et al.

United States Circuit Court, S.D. Iowa, Western Division.

December 31, 1888

Cummins & Wright, for complainant.

L. L Delano and Lehman & Park, for defendants.

SHIRAS J.

This suit is brought for the purpose of foreclosing a mortgage on realty, executed bye Benjamin W. Carr and his wife, to secure the payment of a coupon bond for $700, dated May 1, 1880, and maturing May 1, 1885. The defense is that the debt has been paid. The evidence shows that it is another of the contests caused by the embezzlements of Hugh R. Creighton, of which several have already been heard and determined in this court and in which the ultimate question to be solved is, which of the parties, both being free from fault, must bear the loss occasioned by the wrong-doing of the said Creighton?

In this case it is not disputed that about the date of the maturity of the mortgage debt the defendant Carr, for the purpose of paying off complainant's debt and mortgage, negotiated a loan of $650 of the German Savings Bank of Davenport, Iowa and through Holmes, Nash & Phelps remitted the same, with $78 additional, to Hugh R. Creighton, at Des Moines; the amount thus remitted being sufficient to pay in full the principal due complainant, with the six months' interest due May 1 1885. The money thus sent was received by Creighton, but was not forwarded to complainant; and in the June following Creighton absconded, being a defaulter in a large amount. In determining upon whom the loss must fall it is necessary to ascertain the position occupied by Creighton when he received the money, and whether he received it as the representative of the complainant or of the defendant Carr. On behalf of complainant it is claimed that as the bond and mortgage by their terms were payable at the office of B. R. Abbe, in Hartford, Conn., no payment was completed until the money was actually received at the designated place of payment; that the complainant had no knowledge of Creighton, and never authorized him to receive any payments for her; and that he must be held to be the agent of the defendant, charged with the duty of forwarding the money received from defendant to Hartford; and that the consequences of his failure so to do must fall upon defendant. On behalf of the defendant it is claimed that Creighton acted, in receiving the money, as the representative of complainant; that defendant was justified in dealing with him as complainant's representative, and in making the payment to him as such. To settle this question it is necessary to ascertain the facts attending the inception of the loan, and the relation of the parties who were instrumental in negotiating the same.

On part of complainant is submitted the testimony of complainant and of B. R. Abbe, by which it is sought to show that the latter, as the agent of the Union Loan Association of Des Moines, sold to complainant the bond and mortgage in suit, and that there was in fact no connection between complainant and Creighton in the transaction. The true facts of the case, however, are quite clearly shown in the correspondence that passed between Abbe and Creighton. It should be first noted that the complainant, in answer to the question, 'Who acted for you as your agent in making the loan to the defendant Carr?' replied, 'Mr. B. R. Abbe;' and she also testified that in the early part of the year 1880, she placed in the hands of B. R. Abbe the sum of $2,000, to be by him invested in western loans for her. On January 7, 1880, Abbe wrote as follows to Creighton, at Des Moines:

'Mrs. Almira R. Wilcox, of Hartford, has left an order for $2,000 of farm loans, none of the loans to be over $500, all at 9 per cent., good choice ones. Now, Brother Creighton, I want you to get some extra loans for this lady. She has been dealing with Pearson, of Chicago, but has come to me, because I represented you as choice, reliable, and sound, and that you would get her just what she wanted. Don't disappoint her. She has more to invest beside in time. * * * '

January 21, 1880, Creighton replied to Abbe as follows:

'I have your telegram of the 20th, and Thomas A. French, Thomas Snyder, and Mary E. Dowell will be closed at once. * * * I will draw on you today for the Almira R. Wilcox money,-- $2,000, less 1 per cent. com. to you, $20.00; amt. of draft, $1,980.00,-- as authorized by your letter of the 7th inst. If I am obliged to place any of it at 8 per cent. interest I will allow you a little more. Mr. Smith of this office is out now looking up some good applications for Mrs. Wilcox.'

February 12, 1880, Creighton wrote Abbe a statement, showing that he had forwarded him for Mrs. Wilcox: Note of Abraham Angervine for $200; note of August Kast for $500; And of Adam Buter for $500,-- 'which leaves to be placed $700; papers to be dated January 10, 1880. ' In a number of letters passing between Abbe and Creighton reference is made to the investment of this $700, until in letter of July 1, 1880, Abbe acknowledged receipt of the evidence of investment.

Turning now to the mortgage executed by the defendant Carr, we find it was acknowledged on the 26th day of June, 1880. Thus it is made clear that in January, 1880, the complainant placed in charge of B. R. Abbe, as her agent, at Hartford, the sum of $2,000, to be invested for her in loans upon western lands that Abbe intrusted the actual making of the loans to Creighton; that Creighton drew for the money about January 21, 1880, the draft being for $1,980, the balance being left with Abbe as a commission due him; that in February $1,300 of the sum...