Hood v. Adams

128 Mass. 207 | Mass. | 1880

Endicott, J.

When this case was previously before us, it appeared that the presiding judge ruled that the answer and the facts offered in evidence would not, if proved, show a payment of the note, and we therefore assumed that the allegations of the answer and the facts offered in evidence were true, including the fact that Baker, the auctioneer, was duly authorized to purchase the estate for the plaintiff, pursuant to the power contained in the mortgage. 124 Mass. 481. But it appears from the bill of exceptions that, at this trial, the only question of fact for the jury was whether the auctioneer had authority to buy for the plaintiff; and the only question of law raised was this: Did the two letters of the plaintiff to Baker, the auctioneer dated December 3 and 29, 1875, respectively, authorize him to buy the property for the plaintiff in the manner in which he did buy it, or attempted to buy it ? It was not contended by the defendant that Baker was the general agent of the plaintiff. We are of opinion that the presiding judge correctly ruled that the two letters, in themselves alone, did not give him such authority.

As both the letters were written prior to the sale, and both refer to a sale which the plaintiff wished him to make, they are to be construed together. They contain an authority to advertise the estate for sale, and it is clearly to be inferred from them that the estate was to be sold by Baker, as auctioneer, under the power contained in the mortgage; and the first letter contains the direction, “ Please foreclose the mortgage as soon as convenient.” A year’s interest was then due, and the plaintiff was evidently in need of money, and desired the property to be advertised and the mortgage foreclosed by sale in order that she might obtain it. Her language in the second letter is, “I have been wanting that money to pay my taxes, and the interest is accumulating there too. So, if you will advertise the property as soon as possible, you will greatly oblige me.” Construing this sentenud in connection with the sentence in the previous letter, it is evident that she intended bim to make such a foreclosure as would supply her with the money that she desired, and the idea is excluded that she intended, by the words “ foreclose the mortgage,” to authorize him to buy for her. In that event she could not obtain the money, which was the object she had in view by the foreclosure.

The question does not arise, what might be the effect of a general direction to an agent to foreclose a mortgage, containing a power in the mortgagee to purchase at the sale, without any limitation upon his authority, and without any intimation from the mortgagee of the manner or the purpose for which he desired the foreclosure to he made. Undoubtedly the plaintiff intended to foreclose the mortgage, and thereby to extinguish the title of the mortgagor in the premises, but she intended to accomplish this by such a sale as would place money in her hands.

The case was submitted to the jury, on the only question of fact in dispute, upon the testimony of witnesses, as well as upon the correspondence between the parties, before and after the sale; and the presiding judge could not properly rule, “ as matter of law, upon all the evidence, especially the correspondence, that the agent was authorized to purchase the property for the plaintiff, as he did.” No question of law touching a ratification of the sale is properly before us. Exceptions overruled.