Hemmenway v. Mulock

56 How. Pr. 38 | N.Y. Sup. Ct. | 1878

Lawrence, J.

That Berry was the agent of Mulock, for the purpose of procuring a loan on the faith of the bond and mortgage produced upon the trial, cannot, I think, be doubted.

The papers were executed and acknowledged by Mulock, and sent over to Kew York by Kalisch and by him delivered to Berry for the purpose of obtaining a loan thereon. This is quite evident, I think, not only from the testimony of the ■defendant Mulock,and of the witness Kalisch, but also from the language of the defendants’ letters. Writing to Berry under date of October 5,1875, Mulock urges Berry to try and get the “ money for me as soon as possible,” and in the letter of October 9, 1875, he says, “ you said you would have .the money this week; to-day is Saturday and I h§,ve not had one line from you.” These letters were both written after the execution and acknowledgment of the bond and mortgage before the commissioner of deeds.

The testimony in regard to the name of the mortgagee not having been filled in at the time of the execution of the .mortgage is not very positive, and it would be exceedingly difficult to say, from an inspection of the instrument itself, that there is any indication that the name was inserted subsequently. Even if such insertion was made by Berry after the papers had been handed to him by Kalisch, I am of the opinion that under the peculiar circumstances of this case, the papers must be held to have been delivered to Berry with authority to fill in the name of the mortgagee.

The bond and mortgage, as I have determined- on the evidence, were delivered to Berry, as Mulock’s agent, for the purpose of raising money thereon. This would appear to bring the case within the principle maintained in Knapp agt. Maltby (13 Wend., 590), Texvia agt. Evans (1 Anst., 228) and in the cases cited in 3 Washburne on Real Property (4th ed., p. 242). The cases cited by the learned counsel for the defendant were, as I understand them, cases in which material alterations were made in instruments after execution, without the authority of the party to he affected by the alterations, and where, from the circumstances of the case, there could have arisen no implication that it was intended to confer an authority to make such alteration or additions.

I am, therefore, of the opinion that the delivery of the bond and mortgage by Berry to HemiUenway was a good delivery, and binding upon the defendant, and that the payment of the $5,000 by the plaintiff to Berry was a payment to the defendant through his agent.

It follows, then, that if one of two innocent persons must suffer pecuniary loss from the dishonesty of Berry, that the defendant is the person who must sustain the loss.

I am further of the opinion that the defendant, by the execution of the instrument dated December 9th, 1816, which I cannot but conclude was executed with a full knowledge of all the facts, is estopped from denying the validity of the bond and mortgage on the ground that the mortgagee’s name was not inserted at the time the instrument was executed. So far as the defense rests upon the question of usury, I deem it sufficient to say that I do not think that it has been established.

The plaintiff is entitled to a decree of foreclosure and sale. The findings may be settled on two days’ notice.