158 Ind. 508 | Ind. | 1902
This case was transferred from the Appellate Court to the Supreme Court under act of March 13, 1901. Appellant, the International Building & Loan Association, is a corporation whose domicil is at the city of Indianapolis, Indiana. As a part of its business, it conducted a loan department, and was engaged in loaning money on real estate security throughout the State. Augusta M. and Lawrence W. Watson, appellees, are husband and wife. On February 6, 1895, appellant claims to have loaned to Augusta M. Watson $500, which loan is evidenced by a bond executed to appellant by her and her said husband, and secured by a mortgage executed by them on real estate owned by the wife, situated in the town of Geneva, Adams county, Indiana. Appellant’s complaint in this action embraces two paragraphs. By the first paragraph it sought to recover a personal judgment against these appellees on the bond above mentioned, and a foreclosure of said mortgage. Augusta M. separately answered this paragraph of the complaint by (1) a general denial; (2) that she was a married woman .and the owner of the mortgaged premises at the time she executed the bond and mortgage in suit, and that she executed each as the surety for her said husband, and that no part of the consideration was ever received by her for her own use or for the betterment of her separate estate, and that all of the consideration was received and used by her husband in the payment of his debts; (4) payment. The fifth paragraph of her answer was a cross-complaint, in which she alleged substantially the same facts set up in her answer in respect to her suretyship, and thereby sought to have the mortgage and bond adjudged void as to her, and her title in and to the mortgaged real estate quieted. Appellant replied to appellee’s answer by a general denial only, and hence, so far as its reply was concerned, tendered no issue of estoppel. An answer in two paragraphs was filed to the cross-complaint, the first being a general denial; the second contained averments in the nature of a special denial
In Trimble v. State, ex rel., 150 Ind. 154, 51 Am. St. 163, this court said: “The disability as to suretyship, imposed by the statute upon a married woman, must be considered in connection with another provision of the same act, to the effect that she shall be bound by an estoppel in pais, and no construction ought to be given to this exception by the statute of her ability to' contract, as will place in her hands a sword to defend her own fraud and-imposition on others, instead of a shield for her protection, as the law intended.” It follows that the cross-complaint is not open to the objection urged by appellant.
On the trial below, Augusta M., for the purpose of rebutting or disproving the matter of estoppel interposed by appellant based on her sworn representations and statements made by her in her application for the loan, sought to establish that appellant, through its proper and lawful agent, had notice at the time the loan was made that the money was to be borrowed solely for the purpose of paying her husband’s debts, and that her relation to the transaction in borrowing the money and in executing the bond and mortgage in suit was that of a surety only. Appellee’s husband, when testifying in her behalf on this issue, was permitted by the court, over the objection and exceptions of appellant, to testify to and detail a conversation which he had with one John H. Runyon .immediately prior to the time the loan in controversy was .applied for and obtained. Runyon, whom appellee asserted was the agent of appellant, resided
As a general rule, an agent is one who is either expressly or impliedly invested with authority from his principal to act in his place and in his behalf. It is true that notice to an agent of a corporation relating to any matter or transaction in which he has been given the control or management thereof by such corporation is notice to it. Pittsburgh, etc., R. Co. v. Ruby, 38 Ind. 294, 10 Am. Rep. 111; Indiana, etc., Co. v. Snyder, 140 Ind. 647.
It is, however, only where the agent is acting within the scope of his agency when he acquires such knowledge or notice that this- rule obtains. Under such circumstances it becomes his duty to act upon the notice, or communicate it to his principal, and if he fails to do so the principal will
It certainly can not be controverted that, if Runyon was the agent of appellant in making or negotiating the loan to appellee, notice received by him within the scope of his agency to the effect that' she was to become the surety of her husband would in law have been notice to appellant of such fact, and evidence of such notice would have been competent for the purpose of rebutting the estoppel which appellant interposed under its answer. But can it be asserted that there is any legitimate evidence to show that Runyon had any connection with the matter of making the loan in controversy, or "that the same was under his control as the agent of appellant ? It is true that he served the latter at times as its attorney or collecting agent in collecting money for it, such as dues, premiums, and fines due from some of its members; but authority to make collections for it would not necessarily imply authority to make or negotiate loans.
Eor the error of the lower court in admitting this evidence the judgment rendered against appellant on the issues tendered and joined on the first paragraph of the complaint and also on appellee’s cross-complaint is reversed, and the cause remanded, with instructions to the lower court to grant appellant a new trial in respect to these issues, with leave to reform the same, if desired.