210 P. 765 | Mont. | 1922
sitting in place of MR. JUSTICE FARR, disqualified, delivered the opinion of the court.
This is an action brought by the plaintiff against the defendants, Grandin Investment Company and Albert H. Mork, to cancel certain notes and mortgages on account of partial failure of consideration.
The complaint alleges in substance that the plaintiff is the owner of about 314.91 acres of land in Custer county, Montana; that the defendant Grandin Investment Company is a corporation organized and existing under the laws of the state of Minnesota and engaged in the business of loaning money upon farm land security; that on or about the thirty-first day of December, 1917, the defendant Albert II. Mork was the agent of said corporation at Miles City, Montana, in securing the execution of applications to it for farm loans; that on or about said date the defendant Albert H. Mork as agent of said corporation and in its behalf obtained from the plaintiff an application for a loan of $2,000 to be secured by said land, which said application was signed by him and his wife and immediately forwarded by Mork to the corporation; that the said corporation accepted the said application, and thereupon plaintiff” and Ms wife on the said thirty-first day of December, 1917, executed to it a promissory note for $2,000
The defendant Mork did not appear in the action. The answer of the defendant corporation in effect admits all the material allegations of the complaint except those relating to the agency of Mork and its failure and refusal to pay the plaintiff the full sum of $2,000, which are denied. By way of new matter it is further alleged therein, among other things, that the application for a loan signed by the plaintiff contained the following provision: “I hereby appoint and constitute A. H. Mork, of Miles City, my agent or attorney in fact to negotiate and procure the loan hereby applied for, authorizing him, or yourselves, to pay off all liens on said land, and to send money or drafts therefor at my risk, and I hereby ratify and confirm all that my said agent, or yourselves, may do in the premises. Payment of the money on said loan to my said agent shall constitute payment to me the same as though paid direct to me.”
The reply denies all the allegations of new matter found in the answer.
The district court tried the case without a jury, made findings of fact and conclusions of law in favor of the plaintiff, and entered judgment accordingly. From this judgment and an order denying its motion for a new trial the defendant corporation has appealed.
John C. Colwell, C. M. Allen, and W. B. Leavitt testified in behalf of the plaintiff and C. D. Grandin, the president
Counsel for appellant earnestly contends in his brief that the defendant Mork was the agent of the plaintiff, or, if not, that the plaintiff by failing to strike out that part of
The principles of law applicable to suits of this kind as enunciated by the courts of the country are stated thus in 2 C. J. 446 et seq.: “In the negotiation of loans it is often difficult to determine whether an intermediary is the agent of the borrower or of the lender. Each case must be decided upon its own particular circumstances, and although certain facts have been held to constitute the intermediary the agent of the borrower, or lender, as the case may be, these facts are not necessarily conclusive on the question of agency, and
“If a person desiring a loan makes known that desire to one who applies to a money lender and consummates the loan, the intermediary prima facie is the agent of the borrower, not of the lender, and justifies the lender in paying him the amount of the loan. So if the borrower in a written application or otherwise expressly makes the intermediary his agent, if he pays the agent’s commission for negotiating the loan, or if he employs the intermediary to examine the title to the property offered as security, or to discharge prior encumbrances thereon, these facts, taken collectively or in various lesser combinations, are generally held to justify an inference that the intermediary is the agent of the borrower. So also if the lender has given the agent no authority to receive payment for him, and the borrower pays such agent, the debt is not satisfied until the money reaches the lender, for the intermediary is in such case acting as agent of the borrower to receive and transmit the payment.
“If a money lender employs the intermediary to negotiate loans, to examine the title to property offered as security, to see that the property is discharged from prior encumbrances, to prepare the papers and see to the execution thereof, to pay over the money to the borrower, or to perform other services in regard to the loan, these facts, taken collectively or in various lesser combinations, justify an inference that the intermediary is the agent of the lender. If the lender pays the intermediary’s commission, it tends to establish an agency in the lender’s behalf; and if the service is performed at the request and by the direction of the lender, presumptively the agent is his agent, even though the borrower is required to pay for the service.”
The judgment of the lower court accords with our ideas of justice and fair dealing and is fully sustained by the evidence.
The judgment and order appealed from are therefore affirmed.
Affirmed.