50 Neb. 900 | Neb. | 1897
On the 8th day of October, 1885, Montgomery Pollock and wife borrowed the sum of $1,000 through one Ton-cray, acting as. agent for the Dakota .Mortgage Loan Corporation, hereafter called the “Dakota Company,” and on said day executed and delivered to Toncray their negotiable note or bond in the principal sum above named, payable to the order of said Dakota Company October 1, 1890. Accompanying said note or bond were coupons, also executed by the Pollocks, for, the semi-annual'interest upon the principal debt, all payable at the office of the said corporation in Boston, Massachusetts. The Pollocks, in order to secure said bond and coupons, on the day first mentioned executed in favor of the payee therein named a mortgage upon the southeast quarter of section 10, township 17, range 9 east, in Dodge c.ounty. On the 17th day of November, 1885, the Dakota Company duly sold and transferred said bond and coupons to Fanny C. Palmer, who thereafter indorsed the same to Mo.ore, the
It may, we think, be fairly assumed from the foregoing statement that the relation between the plaintiff and the Nebraska Company was that, of principal and agent with respect to the interest coupons. It may also be conceded, for the purpose of the present inquiry, that said company was, when the principal debt matured, authorized to receive payment thereof in behalf of the plaintiff in the usual course of business, even in the absence of the evidence of such indebtedness; but does it follow therefrom that said company could bind the. plaintiff by accepting in satisfaction of the said claim a note and mortgage payable to its own order five years thereafter, and which would require the advancement by him or his cestui que'trust of fifty per cent of the face value of his security? To that question the books furnish a ready answer in the proposition that an agent employed to make collection of commercial paper is not, as the result of such relation alone, authorized to receive in payment thereof anything but money, which, however, as said in State v. Hill, 47 Neb., 456, includes not only legal tender coin and currency, but any other circulating medium, instruments, or tokens in general use in the commercial world as the rep
Scott v. Gilkey, 153 Ill., 168, was a case in which a bank holding notes for collection accepted therefor other notes of the maker, payable to its own order at a future date, and surrendered the first mentioned notes, marked paid. At the same time it credited the payee’s account with the amount of his notes, although no money passed in the transaction. It was held not to amount to a payment and the payee was permitted to recover.
In the recent English case of Hine v. Steamship Insurance Syndicate, 11 The Reports [Eng.], 777, it was held that an agent authorized to demand payment on behalf of his principal can receive money only, and payment by means of a bill of exchange drawn by the agent and accepted by a debtor of the principal, payable three months after date, was held not within the authority of the former and not binding upon the principal, although said bill was immediately discounted and honored at maturity.
Ward v. Smith, 7 Wall. [U. S.], 447, was a case in which a bank holding for collection certain securities payable at its office accepted in satisfaction thereof depreciated bank notes, but the court, referring to the foregoing facts when relied upon as a defense to an action on such securities, said: “That the power of a collecting agent, by the general law, is limited to the receiving for the debt of his principal that which the law declares to be a legal tender, or which is by common consent considered and treated as money and passes as such at par, is established by all the authorities.” (See, also, Lochenmeyer v. Fogarty, 112 Ill., 572; Merchants Nat. Bank of Philadelphia v. Goodioin, 109 Pa. St., 422; Graydon v. Patterson, 13 Ia., 256; Aultman v. Lee, 43 Ia., 404; Scully v. Dodge, 40 Kan., 395; Robinson v. Anderson, 106 Ind., 152; Mechem, Agency, sec. 375, and cases cited.)
Counsel for appellants, however, remind us of our duty
Affirmed.