81 P. 55 | Idaho | 1905
The appellant, who was plaintiff, brought this action as assignee of a negotiable promissory note and mortgage securing the payment of the same, to foreclose said mortgage and to collect the amount due, on said promissory note. The following facts appear from the record. That on the first day of March, 1897, James F. and Sarah M. Belk were the owners of .lot 9 in block 48, Boise City, and on that date made application to the Bunnell & Eno Investment Company, a corporation, to negotiate for them a loan of $850 on said lot. In that application the Belks constituted said corporation their agent for the purpose of negotiating said loan and agreed to pay them a commission of $141.65 for such services; that on the first day of June, 1897, said Belks executed to said company the
It is contended by counsel for appellant that said insolvent corporation was the agent of the mortgagors and not the agent of the appellant in receiving the money in full payment of said debt. If that be true, said note has not been paid. It appears from the'record that the attorney for the appellant was well acquainted with the president and vice-president of the Bunnell & Eno Investment Company, and had his office in the city of Philadelphia in the same building where said corporation had its office; that said attorney had sold more than fifteen million dollars’ worth of obligations similar to the one involved in this
Under all of the facts in this case we think it clear that the •appellant is estopped from claiming that the Bunnell & Eno Investment Company was not his agent in the collection of the amount due on said note. He purchased said note and mortgage on the twenty-first day of June, 1897. He had a written contract with said corporation whereby it became responsible for the payment of the interest and principal of said note when •due, and that said corporation might repurchase said note and mortgage at any time it saw fit to do so, and that the appellant should not foreclose said mortgage within two years after it became due. He failed to record his assignment in the proper county; he failed to notify the mortgagors of such assignment; he accepted through said corporation nine interest payments •covering a period of four years, and delivered the nine interest coupons therefor to the mortgagor, and these facts, in connection with others disclosed by the record, estopped the appellant from claiming that said corporation was not his agent. We have not overlooked the doctrine laid down in Hollingshead v. Globe Ins. Co., 8 N. Dak. 35, 77 N. W. 89, 42 L. R. A. 659, Bronson v. Ashlock, 2 Kan. App. 255, 41 Pac. 1068, Schultz v. Sroelowitz, 191 Ill. 249, 61 N. E. 92, Biggerstaff v. Marston, 161 Mass. 101, 31 N. E. 785, and Bodge v. Birhenfeld, 20 Mont. 115, 49 Pac. 590, and other authorities cited. The doctrine of those cases is not applicable to the facts in this case. We are fully satisfied that the appellant is not entitled to recover against the defendant but must look to his agent, the defunct Bunnell & Eno Investment Company. The judgment is affirmed with costs in favor of the respondent.