D. M. Osborn & Co. v. Baird

| Wis. | Aug 15, 1878

Taylor, J.

"We do not find any error in the proceedings or judgment. The defendant paid the money to the plaintiffs’ agent at the place where the note was payable.. It is true, the payment was made before the note was due; but he was expressly authorized by the plaintiffs to pay it before the same was due. The note was not in the hands of the agent at the place of payment, when payment was made; but it was at that place and in the hands of such agent before he failed and closed his doors. There are two aspects of the case, either of which we think will sustain the judgment. It may well be inferred from the memorandum on the back of the circular letter, that the agent at whose place of business this note was payable, had a general authority to receive payment in advance on all of the, plaintiffs’ notes made payable at his office; and consequently, it was a good payment when it was made. The evidence shows that the letter given in evidence is a printed form, and that the indorsement on the back is also printed in three languages, English, Norwegian and German. It may fairly be inferred from this fact that it was their general mode of doing business to permit the payment of their notes before they were due, and that their agents at the places where the same were made payable, were instructed to receive such payments. It is also clear that, the plaintiffs’ having sent their note to the agent at the place where the same was payable, before it was due, and notifying the defendant that he could pay the same into the hands of such agent at any time before as well as after it was due, was a ratification of the payment made before the receipt of the letter; and thereafter the agent held the money for the use of the plaintiffs, and not for the use of the defendant. The money was in the hands of the agent to pay the note, and, there being authority to pay at any time before due, the note was paid as soon as the agent received the same. It would have been an idle and unnecessary ceremony for the defendant to call upon the agent, and say to him that the money he had already received in payment of the note should be then applied to such payment. The maker of the note had the right to rely upon his payment already made, as a satisfaction of the same, as soon as the note came to the hands of the plaintiffs’ agent, who was authorized to receive and who had received his money in payment thereof.

In this case, if either party is to suffer a loss by the failure of the person at whose office the note was made payable, it should be the plaintiffs. They made this note payable at the office of the failing party, and thereby constituted him their agent to receive the money on the note; and,he having received such money of the defendant in payment of the same, although before the note was due, yet, having authority so to receive the same, the loss, if any, arising from his subsequent failure, should fall upon the plaintiffs.

By the Oowrt. — The j udgment of the circuit court is affirmed.

Ryan, C. J., took no part.