| Mo. Ct. App. | Nov 22, 1897
This suit was originally brought by' Thos. W. Poster, who has since died, and the action is now prosecuted by his administrator and heirs. Its purpose was to enjoin the sale of certain real estate about to be sold in the foreclosure of a deed of trust made to secure a loan made to said Poster by the defendant life insurance company.
In due season the application, appraisement and abstracts of title were forwarded to Jarvis, Conklin & Company, whose attorney passed on the title pointing out the incumbrances, etc. Thereupon Jarvis, Conklin & Company prepared and returned to Chillicothe the note for $2,500 payable to defendant life insurance company with deed of trust to secure same, as also a note and subsequent deed of trust for $250 to cover
These papers were all executed by Foster, the deed of trust was placed on record in the recorder’s office at Chillicothe, and then all forwarded to Jarvis, Conklin & Company at Kansas City. Along with these papers Foster sent the following order directed to said Jarvis, Conklin & Company: “Pay to J. C. Cross or order the full amount due us on the loan negotiated by you for us with the Mutual Benefit Life Insurance Company and this shall be your receipt therefor.
“(Signed) Thomas W. Foster.”
The Jarvis-Conklin firm turned the papers belonging to the loan over to the life insurance company who in turn furnished the $2,500, and this was at once remitted to J. C. Cross at Chillicothe as required by Foster’s order just quoted. Out of this Cross paid all the incumbrances on the land, as indicated by the abstract, and got proper releases, but failed to pay the $600 mortgage. As to this he attached to the abstract a forged acknowledgment of satisfaction and appropriated the $600 to his own use.
Foster failing to pay the loan when it matured, the trustee in the deed of trust as requested by the beneficiary insurance company, proceeded to advertise the land for sale, and thereupon this suit was begun. The circuit court found the issues for the plaintiff holding that Foster only received $1,900 out of the $2,500, and reducing the incumbrance in the sum of $600 the amount embezzled by.Cross.
The decision of this case turns on the question as to who shall be responsible for the $600, wrongfully
The question is simply one of agency. In receiving and disbursing the $2,500, did Cross act as the agent of the lender or the borrower — of the insurance company or of Poster? If in handling this money Cross was agent for Poster, then it is clear that the latter must suffer the loss.
It seems to me too plain for argument that Cross was in the transaction the agent of Poster, the borrower. Whatever may have been the relation of Cross to the parties before the money was paid over, it is clear that Poster, by the order given after the execution of the papers, constituted Cross as his agent to receive the proceeds of the loan. In explicit terms Poster then commands Jarvis, Conklin & Company to'pay the full amount due him on the loan to J. C. Cross and that “this shall be your receipt therefor,” and in pursuance of this request the entire $2,500 was paid to Cross. This was clearly a payment to Poster, since it was a payment to one he authorized to receive the money. Doubtless, Jarvis, Conklin & Company expected that Cross would properly apply the money to the satisfaction of the prior liens and thereby protect the loan then being made to the insurance company. But this can have nothing to do with the question as to whose agent Cross was in receiving and paying out the money borrowed. It was the duty of Poster, the borrower, to pay off the prior incumbrances, and it would seem that
Judgment reversed and cause remanded.