145 Mo. 127 | Mo. | 1898
On the fourth day of April, 1889, Isaac N. Hendricks, being the owner of the tract of land described in the petition in this cause, by his deed of trust of that date in which his wife joined, conveyed the same to one George W. Toms in trust to secure the payment to defendant, the said insurance company, of a certain promissory note' for $2,000, due and payable on the first day of May, 1894, and five coupon interest notes thereto attached of the same date, each for the sum of $120, one payable on the first day of May of each successive year thereafter until the maturity of said principal note, all with interest at the rate of ten per cent per annum after maturity, and payable to the order of the defendant at its office in Newark, N. J,
Afterward on the eighteenth day of October, 1892, the said Hendricks by his warranty deed of that daté in which his wife also joined, conveyed the premises to the plaintiff, who on the eleventh day of August, 1894, instituted this suit in the Jasper county circuit court, in which county the land is situate, alleging in its petition that all of the indebtedness evidenced by said promissory note and coupons and the interest thereon had been paid off and discharged according to their tenor and effect, and all the covenants of the deed of trust complied with and that thereupon the plaintiff had requested the defendant company to acknowledge satisfaction of said deed of trust, or to execute and deliver to plaintiff a sufficient deed of release thereof, the legal costs and charges for executing which had been paid to the defendant for that purpose, which, however, the defendant has refused to do. Wherefore plaintiff prays that the defendant be so required, and
The answer of the defendant after admitting the incorporation of the parties plaintiff and defendant and the execution of the notes aforesaid and the deed of trust, denied all the other allegations of the petition. On the hearing, the issues were found for the plaintiff and a decree entered that said deed of trust be canceled and for naught held and esteemed, and the cloud thereof upon plaintiff’s title be removed, and that plaintiff recover of defendant its costs herein expended; from which decree and judgment, plaintiff appeals.
It appears from the evidence in the case, that in the year 1889 “The Wilson and Toms Investment Company” of the city of St. Louis, a corporation under the laws of the State of Missouri, was engaged in the business of “placing real estate loans on farm lands and placed a great many loans of that character for the Mutual Benefit Life Insurance Company” the defendant herein.
On the fifteenth of March, 1889, the said Hendricks made a written application to the said investment company, whereby he appointed said investment company his agent to procure a loan of $2,000 for the term of five years at six per cent per annum secured by trust deed on the premises in question. This application, with the recommendation of the investment company of the security offered, was submitted by said company to the insurance company on the twenty-ninth of March, 1889, and having been approved by the latter company, the promissory notes and deed of trust aforesaid were executed by the said Hendricks and wife, the deed of trust recorded, the notes and recorder’s certificate delivered to the investment company and by it forwarded to the insurance company, the investment company drawing at the same time upon the insurance
“Central Trust Company,
“Oriel Building, S. E. Cor. Sixth andLocust,
“St. Louis, Mo., April 15,1894.
11 First National Bank, Carthage, Mo.
“Dear Sir: — Your next installment of interest, $160, will be due May 1, 1894, and to reach the mortgagee promptly your remittance should be in our hands at least five days before that time.
“Remittances may be made by New York or St. Louis draft, money order or currency by registered letter or express.
“Please return this notice with your remittance, and remit directly to us.
“Yours truly,
“Central Trust Company.
“I. N. Hendricks,”
*133 11 Central Trust Go., St. Louis, Mo.
“Gentlemen: — Inclosed please find-in payment of above amount, acknowledge receipt and send coupon to yours truly,---.
“Principal also due.”
In connection with this letter and blank, it may be well to note, that in negotiating this loan Hendricks in addition to the notes and deed of trust to the insurance company, also at the same time and as part of the same transaction executed and delivered to the investment company five other notes' each for the sum of $40, falling due annually at the same time with the interest coupon notes aforesaid to the insurance company, secured by a second mortgage on the premises, by which arrangement, while the borrower paid eight per cent interest on his loan, the insurance company only received six per cent and the remaining two per cent went to the investment company as compensation for its services. As both notes fell due at the same time, both were included in the same notice, hence the notice of the installments of interest to fall due May 1, 1894, is stated to be $160 — that amount being the aggregate of the last coupon interest note to the insurance company, and of the last commission note to the investment company. To this letter the plaintiff bank mailed the following answer:
“Fiest National Bank,
“Carthage, Mo., April 17,1894.
“ Central Trust Company, St. Louis,
“Gentlemen: — Your notice of the maturity of I. N. Hendricks’ $2,000 loan with $160 interest on s. w. qr. sec. 20, tp. 30, rge. 30, received, and will ask you to have the papers in your hands, with release, when due, as we desire to pay it off.
“Yours truly,
“Ym. E. Beinkeehoef,
“President.”
“St. Louis, April 18, 1894.
“First National BanJc,
“Gentlemen: — Yours of 17th inst.,rec’d, asking* us to have papers in I. N. Hendricks’ $2,000 loan here at maturity May 1, with release.
“The company holding the loan do not send papers and release out for collection, and the proper plan would be for you to send us check for the amount due $2,161, being principal$2,000, May interest $160, and$l for release and securing papers. On receipt of same we will secure and forward you papers and release as promptly as possible.
“Yours truly,
“Central Trust Co., H. P. W.”
Which reply was responded to by the bank as follows :
“First National Bank,
“Carthage, Mo., Apr. 30, 1894.
“Central Trust Go., St. Louis,
“Gentlemen: — We hand you herewith our No. b, 11226 on Conti. N. Bank, St. Louis, for $2,161 inpayment of the I. N. Hendricks loan, due May 1,1894—
“$2,000
“Int.......160
“Release...... 1
$2,161
“Please acknowledge receipt, and forward papers to us at as early a date as possible.
“Yours &c.,
“E. B. Jacobs, Cashier.”
The receipt of which letter and inclosure was acknowledged by postal cai’d, addressed “First National Bank, Carthage, Mo.,” as follows:
*135 “Central Trust Company,
“Oriel Building, St. Louis, Mo.
“Dear Sir: — Your favor for I. N. Hendricks’ "principal and interest is received with inclosures. Papers will be sent when received from the East.”'
The draft inclosed in the letter of April 30 was payable to the trust company and when received by the trust company was credited on its books, $2,000 to the principals collected on account of the insurance company, $120 to the interest collections account, and $41 to the credit of the trust company, and the draft deposited in bank to the credit of the general account of the trust company. The evidence tends to prove that the amount credited to the insurance company’s interest account, $120, was remitted on the second of May, but it appears that the $2,000 principal went into the business of the trust company and was never remitted or accounted for to the insurance company by the trust company, which on or about the first of June, 1894, failed and made an assignment for the benefit of its .creditors. Hence this suit to determine which of the parties ought to sustain the loss. The crucial question in the case being whether or not the trust company was the agent of the insurance company authorized to receive payment of the money in discharge of said principal note of $2,000.
I. Counsel for defendant contends, however, that the correspondence hereinbefore set out, contains all the evidence of the transaction claimed by plaintiff to have resulted in the payment of the note, and that it conclusively appears upon the face thereof that the money was transmitted to and received by the trust company as the agent of the plaintiff; hence the question whether or not the trust company was the agent of the defendant is immaterial. Wheu the whole of this correspondence is read together in its proper
II. It must be conceded that express authority from the insurance company to the trust company to collect this principal note was not shown by the evidence. But this was not necessary under the well settled rule that, “Whenever a person has held out another as his agent, authorized to act for him in a given capacity, or has knowingly and without dissent permitted such other to act as his agent in such capacity, or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent authorized to act in that capacity, whether in a single transaction, or in a series of transactions, his authority to such other person to act for. him in that capacity will be conclusively presumed, so far as may be necessary to protect the rights of third persons who have relied thereon in good faith, and in the exercise of reasonable prudence, and he will not be permitted to deny that such other was his agent, authorized to do the act he assumed to do, provided that such act is within the real or apparent scope of the presumed authority.” Mechem on Agency, sec. 84 and cases cited; Johnson v. Hurley, 115 Mo. 513; and cases cited.
The insurance company having thus for years, by its habits and course of dealing, held the trust company out to all persons connected with these loans as its agent, authorized it to receive payment of the same, both principal and interest, at maturity. The plaintiff bank when it received notice from the trust company that the principal and interest of “the Hendricks loan” was due, with directions to remit the full amount of both to the trust company, having knowledge of the insurance company’s habits and course of dealing with these loans, had therefrom in connection with its course of dealing theretofore with this particular loan, the right to presume that the trust .company -had authority from the insurance company to receive the remittance thus directed to be made in full payment of the principal of the loan, and the interest thereon, and having in good faith made the remittance in payment thereof, relying upon such apparent authority of the trust company, such presumption in this action ought to be held conclusive of such authority against the insurance company, unless something is to be found in