104 Mich. 135 | Mich. | 1895
The findings of fact are as follows:
“ On the 24th day of May, 1880, Albinus Pierce owned certain land in Gratiot county, on which there was a mortgage of about 8350, running to George Holden. On the said 24th day of May he sold the said land to Mrs. Ellen Ackmoody, by warranty deed; the trade being fully completed, and the papers recorded, on the 15th of December, following.
“ On the said 15th day of December, 1880, Ellen Ack*137 moody applied to Nathan Church, the defendant in this action, who was at that time conducting a real-estate, abstract, and loan office in Ithaca, to get a loan of $1,350 on her note, secured by a mortgage on said land. Defendant procured a loan for her, taking the mortgage to the Lenawee County Savings Bank of Adrian, for which he was acting as agent in loaning its funds on first mortgage on real estate, and proceeded to pay and get discharged all liens and incumbrances on the said land. Holden, who held the $350 mortgage, refused to take the money on his mortgage, which was not due, having about three years to run. The balance of the money borrowed was to go to Pierce, to apply on the purchase price of the land. The defendant, Church, with Ackmoody’s consent, and to protect his principal, the Lenawee County Savings Bank, against" having a second mortgage, and with the consent of Pierce, to make good his covenants and agreements in the warranty deed given by him to Ackmoody, reserved and kept the sum of $430 from the amount so loaned, with which to pay off and discharge the Holden mortgage as soon as Holden would accept the same. If there was any overplus or balance remaining after paying the same, it was to be returned to Pierce. This money remained in the bank of Church, Bills & Co., at Ithaca, to the credit of the defendant. Either party could terminate this agreement at any time.
“ The matter was allowed to remain in this condition until the 33d day of April, 1881, when the plaintiff, De Witt S. Havens, bought the land in question from Mrs. Ackmoody for the sum of $3,150. De Witt S. Havens is a farmer residing in the state of New York, and purchased the said land for the use of his brother, Alonzo Havens, but took the deed, an'd has since .kept the title to the said land, in his own name.
“On the said 33d day of April, 1881, the plaintiff, De Witt S. Havens, Alonzo Havens, D. D. Ackmoody (acting for his wife, Ellen Ackmoody), and Albinus Pierce met at the office of the defendant, in Ithaca. The title was examined, papers were transferred, and plaintiff paid off the Ackmoody mortgage to the Lenawee County Savings Bank, paying the money to defendant. The Holden mortgage was still unpaid, and the amount that had been reserved to pay the same, as before stated, was still in Church’s hands. And it was then and there agreed that the funds so reserved should remain in defendant’s hands, to pay off the Holden mortgage, whenever the owner of the same*138 would accept the same, or the same become due. Defendant, Church, was not present at this meeting; but his-clerks, James W. Howd and a Mr. Blackmer, were there, and acted’for him, and the business was fully understood by them, they being in charge of the defendant’s business-at the time. A memorandum was then, by one of said clerks, written on the margin of a book in which a record of the Ackmoody loan was kept, as follows:
“‘D. S. Havens has bought this land subject to this mortgage. This money, is to go to said Havens to pay this mortgage, the-same as if Ackmoody owned the land, and the balance is to go to Albinus Pierce.’
“ This memorandum was read and understood and assented to by all parties present. Plaintiff, D. S. Havens, went back to New York.
“ In the fall of 1882, Alonzo Havens, in company with Albinus Pierce, came to the office of the defendant. Defendant was away, but Mr. Howd, the clerk above-named, was present, and acted for the defendant. Alonzo-Havens represented to the said Howd that he (Havens) was D. S. Havens, the plaintiff, and was entitled to the money so left with the defendant. Howd did not know or did not recognize the said Alonzo Havens, and believed he was D. S. Havens, the plaintiff, but he took no measures to-inform himself as to his identity. , Mr. Pierce was with him, who was known to Mr. Howd; but he did not ask Pierce as to the identity of Alonzo Havens, nor did Pierce introduce him, or say anything about him in any way. Howd computed the amount in defendant’s hands, reserved as before stated, and gave the parties a check for the amount of the same on Church & Bills’ bank, which was-presented to the bank and paid. In this transaction, Howd was governed and controlled by the memorandum of the previous transaction appearing upon the book, and the full belief that the Havens to whom, together with Pierce, he paid the money, was the Havens mentioned in said memorandum, which belief was induced by the representations and conduct of Alonzo Havens and Albinus Pierce.
“ Afterwards, and about September, 1883, Alonzo Havens came to the office of the defendant, in Ithaca, and again represented himself as D. S. Havens, negotiated a loan of the defendant upon the land in question, and, as D. S. Havens, executed a mortgage upon the land; and Howd, as the agent and clerk of the defendant, gave him about*139 $600 upon said mortgage, of which $500 was by draft and about $100 in currency. The draft the defendant after-wards recovered, but the currency he lost. A short time after taking this mortgage, the defendant discovered for the first time that the man who had been personating D. S. Havens was not D. S. Havens. The defendant never had any personal knowledge of any part of the transactions of April 22, 1881, or October 30, 1882, until after the last loan was made, in September, 1883.”
The judgment will therefore be reversed, and judgment entered in this Court for $430, with costs to the defendant.