52 Ind. App. 611 | Ind. Ct. App. | 1912
Lead Opinion
Suit on a promissory note given by appellee Ida M. Ranje to appellant for $2,500, and for foreclosure of a real estate mortgage given to secure the same. The complaint was in two paragraphs. The first was in the
Appellee Ranje answered by general denial; failure of consideration; payment, and by a paragraph alleging, in substance, that she executed the note and mortgage sued on to indemnify appellant for any loss he might sustain by reason of a certain contract of her said son with one G-ausepohl, on which appellant was his bondsman, and not otherwise; that she had full confidence in her said son, and relied on him in all particulars; that she had for years signed papers as indemnity to appellant; that said G-ausepohl contract was executed on or about April 17, 1905, and appellant has not been required to pay, and has not paid anything on account
The only error assigned is the overruling of the motion for a new trial. The new trial was asked for alleged error in the admission and exclusion of certain evidence. Henry Ranje was shown to be out of the jurisdiction of the court, and his testimony was not obtained.
Agency may be implied from circumstances and conduct. In this case the one fact mainly relied on to show that Henry Ranje was the agent of his mother is the delivery by her to him of the note and mortgage after she had signed them. The authority so implied cannot exceed the necessary and legitimate effect of the facts from which it is inferred. At most it only constituted him her special agent, with authority to deliver the instruments to the payee in the form and with the effect they possessed when they left her possession. Mechera, Agency §274; Story, Agency §87; Robinson v. Bank of Winslow (1908), 42 Ind. App. 350, 353, 85 N. E. 793; Ford v. Postal Tel. Cable Co. (1899), 124 Ala. 400, 27 South. 409, 410; McAlpin v. Cassidy (1856), 17 Tex. 449, 462. In Story, Agency §87, it is said: “In short, an implied agency is never construed to extend beyond the obvious purposes for which it is apparently created.” The implied authority to deliver the note and mortgage would not include the power to change the meaning and effect of such written instruments. Robinson & Co. v. Nipp (1898), 20 Ind. App. 156, 163, 50 N. E. 408.
Other questions were asked by appellant on examination in chief, which could only be proper, if at all, on rebuttal. The record discloses no prejudicial error on account thereof.
No available error having been pointed out by appellant, the judgment is affirmed.
Dissenting Opinion
Dissenting Opinion.
As stated in the majority opinion, both appellant and appellee Ida M. Ranje were rendering a gratuitous service to Henry Ranje. The mortgage in question was written by appellant, and given to a notary, not in the employ of appellant, who took the acknowledgment of Ida M. Ranje, in the presence of her son Henry. She gave the mortgage and note to her son, who delivered it to appellant. She knew that she was not executing the mortgage to secure
I believe the trial court erred in rejecting the testimony offered, and for the error in overruling the motion for a new trial, the judgment should be reversed.
Ibach, P. J., concurs.
Note.—Reported in 98 N. E. 314, 317. See, also, under (1) 16 Cyc. 1005, 1028; (2) 38 Cyc. 1378; (3) 16 Cyc. 1148; (4) 31 Cyc. 1331; (5) 27 Cyc. 1613; (6) 38 Cyc. 1329; (7) 3 Cyc. 300. As to admissibility of parol evidence to affect written terms of a mortgage, see 56 Am. St. 667; 11 Am. St. 844. As to- principal’s not being bound by agent’s act outside the scope of his authority, see 6 Am. St. 37.