208 Ill. 577 | Ill. | 1904
delivered the opinion of the court:
The evidence is not sufficient to show that Louis A. Rowley was the agent of Patrick Ivory to collect. It appears that Ivory told him he had §1200 to loan, and requested him to find a place for it. Shortly afterward Ortmeier applied to Rowley for a loan, and Rowley took his note for §1200, payable to Ivory, secured by a real estate mortgage. When Ortmeier delivered his note and mortgage to Rowley the latter paid over the money, and Ivory did not part with his funds until Rowley delivered the note and mortgage to him at a later time. It would appear, therefore, that Rowley advanced his own money to Ortmeier in the first instance. Rowley directed Ortmeier to make remittances of interest and principal to him, and Ortmeier did so by mail, and the interest payments were in turn paid by Rowley to Ivory, but the principal, when paid, he embezzled. It is shown that in other instances where Rowley had loaned the money of Ivory, the same course had been pursued in making payments except that no other misappropriation appears. Ivory swears that Rowley never was his agent for any purpose, and the other evidence in the case is entirely consistent therewith, so far as the existence of any right to collect Ivory’s money is concerned. There is no evidence that Ivory ever placed any money in Rowley’s possession to be loaned, or that Rowley ever had possession of any of the evidences of indebtedness after the money loaned thereon by Ivory had passed out of the hands of the latter. The fact that Rowley received money from the borrowers and paid it to Ivory, and that Ivory requested Rowley to notify Ortmeier when the interest was due and after the death of Rowley wrote Ortmeier of his decease, and requested the debtor, in view thereof, to remit to him, Ivory, consists as well with the theory that Rowley was the agent of the borrower as with appellant’s contention that he was the agent of the lender. We think the conclusion warranted that such payments were made through Rowley by the borrowers at his solicitation, his purpose being thus to keep in touch with bo„th borrower and lender for the purpose of promoting the loan brokerage carried on by him, and under such circumstances he would be acting as the agent of the borrower in receiving the payments. It does not appear that either party ever paid him anything for his services in collecting money and turning the same over to the mortgagee.
Viewing this evidence from the standpoint of appellant, the most that can be said is, that it tends to prove that Rowley was Ivory’s agent to make the loan in the first instance, but proof of authority to make the loan is not evidence of authority to collect either principal or interest. Cooley v. Willard, 34 Ill. 68; Thompson v. Elliott, 73 id. 221; Fortune v. Stockton, 182 id. 454.
Lotta Ortmeier, the wife of appellant, and Dow, the executor of Gerke, appellant’s grantee, were made defendants. It is now assigned as error that the court should have dismissed the bill as to them and adjudged the costs occasioned „by making them parties against appellee. As suggested by counsel, ah exception to a ruling of the court is both unnecessary and improper in chancery, but it is necessary to show by the record that any question presented in a court of review was involved in the suit below and an adverse ruling made there. It does not so appear here.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.