31 Cal. 160 | Cal. | 1866
It was a material issue in this case, whether the plaintiffs took the note and mortgage in suit, with notice that they were made on a settlement between Byers, the plaintiffs’ assignor, and the Red Bluff Hotel Company, in respect to a certain contract theretofore entered into between them, and that such contract had been assigned, or pledged, by Byers to Doll & Simpson before such settlement, and was held by them when the settlement was made. The finding upon that issue was as follows : “ It was stipulated, in open Court, by the attorneys of the Red Bluff Hotel Company and Gr. W. Hoag, that they would waive the defense that the note was not due ; and further, that the same was transferred to them (Bierce & Powell) without any knowledge or notice, on their part, of the transactions out of which the debt grew, or of the fact that Byers had pledged the five thousand dollar contract to Doll & Simpson. Plaintiffs are therefore bona fide holders for a valuable consideration.” The defendants, in their motion for a new trial, assigned, as one of the grounds, that the evidence was insufficient to justify the finding, and under it specified that there was no evidence of such stipulation. The statement having been settled, the motion was called up for hearing, and denied; and in the order denying the motion, the following statement and decision was made: “ Upon hearing of the motion, the attention was called to an error in the findings drawn by the. attorney, the findings as filed making it appear that there was a' stipulation in Court between the parties, agreeing that the note in action was transferred by Byers to the plaintiffs without notice of any of the equities existing between Byers and the hotel company, or Hoag, or Doll & Simpson. The Court ruled that such finding was an error, when stated as a stipulation, but would be correct when stated as a finding of the Court from the evidence, and that this correction would be made in ruling upon the motion for a new trial, and is now so corrected, and to this ruling of the Court defendants then and there excepted.”
It appears that L. W. Elliott was the attorney for the present plaintiffs and brought suit for them against Byers, their assignor ; that process of garnishment was served on the hotel company; that the suit was compromised, and in accordance therewith the note and mortgage in suit were transferred by Byers to the plaintiffs ; that the compromise was made on the part of the plaintiffs by one of them in person; that their
Notice to an agent, notice to his principal.
The principle is elementary, that notice to an agent of facts arising from or connected with the subject matter of the agency, is constructive notice to the principal, where the notice comes to the agent while he is concerned for the principal and in the course of the very transaction; and many authorities hold that the rule extends to cases where the notice was imparted to the agent so near before the transacaction that he must be presumed to recollect it. (See Le Neve v. Le Neve, 1 Ves. 64; 2 Lead. Cas. in Eq. Pt. 1, p. 106; Story on Agency, Sec. 140; Astor v. Wells, 4 Wheat. 466; Fuller v. Bennett, 2 Hare, 402; Sheldon v. Cox, 2 Eden, 224; Jackson v. Sharp, 9 Johns. 162; Reed's Appeal, 34 Penn. 207; Bracken v. Miller, 4 Watt & Serg. 102; Jackson v. Winslow, 9 Cow. 13; Jackson v. Leek, 19 Wend. 339; Willard’s Eq. 249; Bank U. S. v. Davis, 2 Hill, 461; Mech. Bank v. Seton, 1 Pet. 309.)
It is not doubted by the learned counsel for the plaintiffs, that if Elliott, their attorney, had effected the compromise of the suit with Byers, the plaintiffs would have become bound by the notice brought home to him, while acting as their attorney in that suit; but he contends that Elliott was simply their attorney at law, that his authority extended only to. the management of the action, and that he did not, and did not claim to compromise the action. We need not pause to inquire whether he was not in fact their agent to some extent
Judgment reversed and cause remanded for a new trial.