89 Pa. Super. 34 | Pa. Super. Ct. | 1926
Argued April 21, 1926. The appeal in this case is from an order of the Court of Common Pleas of Westmoreland County, refusing to open a judgment entered April 28, 1924, by Amanda Z. Peters against W. Riley Alter and Mary Ashe Alter, his wife, upon a bond secured by a mortgage of even date therewith and containing a warrant of attorney for the confession of judgment thereon.
During the course of the proceedings in the court below, and pending the final determination of the case, the defendants paid into court a sufficient sum of money to cover said judgment with interest and costs and by order of court the lien thereof was discharged as to the property of the defendants, thereby eliminating from further consideration all questions with *36 respect to the extent of the liability of Mary Ashe Alter, the wife of the real debtor, W. Riley Alter.
From an examination of the pleadings and testimony it appears that the circumstances leading up to the entry of this judgment were as follows: William F. Wegley, a former member of the bar of Westmoreland County, was a partner in the law firm of Williams, Wegley and Doran. Amanda Z. Peters, plaintiff in the judgment and appellee in this court, became acquainted with Wegley and the other members of said firm about fifteen years ago when they acted as attorneys in the settlement of the estates of her father and mother.
Upon six or seven different occasions, beginning about 1910, Wegley asked Mrs. Peters to place in his hands various sums of money to be invested by him in bonds and mortgages. The evidence indicates that Mrs. Peters did not come to Wegley for the purpose of establishing the relationship of attorney and client or employing him to invest her money, but rather that Wegley sought out Mrs. Peters when he had an application for a loan and requested her to furnish the money. In no instance, so far as disclosed by the evidence in this case, did Mrs. Peters pay Wegley for placing her money for her but his fees and commissions were paid by the person applying to him for the loan.
Mrs. Peters and her husband, who frequently acted for her, did however rely upon Wegley to examine the property offered as security and the title thereto and to see that the interest was paid. Shortly before May 6, 1916, W. Riley Alter, the principal defendant in said judgment and one of the appellants in this court, applied to the said Wegley for two loans of $2,000 each, to be secured by separate mortgages upon two lots owned by him in Arnold Borough, Westmoreland County. Wegley inquired of Mrs. Peters' husband whether she had the money and, being informed that it *37 was available, an examination was made by him of the property and the title and bonds and mortgages were prepared from Alter and his wife to the said Amanda Z. Peters, each in the sum of $2,000 real debt, payable in three years, and Alter paid Wegley "the usual commission."
The mortgage securing the bond involved in this proceeding was given upon lot No. 953, Block 30 of the Kensington Improvement Company's plan of lots in said Arnold Borough and was recorded in Mortgage Book Vol. 297, at page 438. Appellants also duly executed and delivered to Wegley the bond accompanying said mortgage. At the same time another bond, payable to the said Amanda Z. Peters, in like amount and secured by a mortgage to her on lot No. 957 in said block and plan was executed by appellants and delivered to Wegley. After the recording of said mortgages they and the accompanying bonds were delivered by Wegley to the appellee and the bond and mortgage on said lot No. 953, with which alone we are concerned in this case, remained continuously in her possession until the institution of these proceedings.
On May 1, 1923, appellants conveyed said lot to Maria Bon Giovanni for a consideration of $3500 and as a part thereof the said grantee assumed and agreed to pay said mortgage. On May 10, 1923, one, Vinzenzo Colaianni, acting as agent for said grantee, advised the said W. Riley Alter that she was ready to pay said mortgage and inquired who had it. Alter told said Colaianni that Wegley had it and added, "Pay me or pay Mr. Wegley. It makes no difference." Thereupon the said Colaianni went to the law offices of said firm and delivered to said Wegley his own check in the sum of $2,000, drawn to the order of said firm, in payment of said mortgage, which check was duly paid to Wegley.
On the same day Wegley, who was also a notary *38 public, left for record in the recorder's office of Westmoreland County a satisfaction piece dated as of that date and purporting to have been signed by the said Amanda Z. Peters and acknowledged before and witnessed by him, setting forth that she had received payment in full of said mortgage, which satisfaction piece was recorded in Mortgage Book Vol. 366, page 138, and mailed to said firm of Williams, Wegley and Doran. This paper has not been found. The money paid to the said Wegley in satisfaction of said mortgage was never paid by him to the said Amanda Z. Peters and the said satisfaction piece had not been signed or acknowledged by her, nor did she ever authorize or ratify it. Throughout these transactions appellants never met, or had any communication with, the appellee. Although said mortgage had apparently been satisfied by said forged satisfaction piece on May 10, 1923, the said Wegley wrote Mrs. Peters a letter under date of March 1, 1924, enclosing a check payable to her order for $750, being the interest on five mortgages owned by her and placed by him up to certain specified dates. Included in this amount was the sum of $120 for interest on the mortgage now in question up to November 6, 1923.
Appellee did not learn of the alleged satisfaction of her said mortgage until April, 1924, and promptly thereafter entered the said judgment on said bond. Upon the filing of appellants' petition to open said judgment and of the answer of appellee thereto, James B. Weaver, Esq., was appointed a commissioner to take testimony, find the facts and report the same with an opinion, it being agreed by counsel for the parties that the testimony should be considered as taken in open court or before a judge thereof.
The said commissioner in his findings of fact found, inter alia, that neither said Wegley nor the law firm of which he was a member was the agent of appellee in *39 receiving the money paid in satisfaction of said mortgage and that appellee "did not directly or indirectly lead, cause or authorize" the said Colaianni to pay said money to Wegley, and recommended that the rule to open the judgment be discharged and the petition dismissed. Exceptions to said report were duly filed and considered by the court below, which court thereupon filed an opinion and decree dismissing the exceptions, confirming the commissioner's report and discharging the rule, and from this decree we have the present appeal.
The assignments of error, although eleven in number, raise the single question whether the court below erred in dismissing the exceptions to the commissioner's report and approving his conclusions to the effect that the principal sum in question, with interest from November 6, 1923, had not been paid to appellee, or to anyone authorized to receive it for her; that the alleged satisfaction piece was a forgery; and that nothing therefore had been shown to relieve the appellants from their obligation under said bond.
In disposing of this case it is proper to keep in mind that an application to open a judgment of this kind is an equitable proceeding addressed to the discretion of the court; that the judge to whom it is addressed acts as a chancellor; and that appellate courts examine the record only to determine whether this discretion has been properly exercised: Kelber v. Plow Co.,
Appellants contend under their fifth assignment of error that this case should have been sent to a jury because *40 the record in the mortgage book was prima facie evidence that the satisfaction piece had been duly executed and acknowledged by the appellee and that it was error for the court below to treat it as a forgery upon the uncorroborated evidence of the appellee. In the first place the testimony of the appellee was corroborated by the circumstance that Wegley continued to pay her the interest on the mortgage subsequent to the date of its alleged satisfaction and in the letter above referred to represented to her in effect that the mortgage had not been satisfied.
Again, the record referred to is not such a judicial record "made up under the eye of the judge in the presence of the parties, and after they have been heard" as imports verity, Fleming v. Parry,
In the next place the learned counsel for appellants contend under their fourth and remaining assignments of error that although the evidence may not show express or specific authority in Wegley to receive payment of this particular mortgage, yet "the general agency as shown by the testimony in this case would include this particular transaction." Their contention is that there was sufficient evidence of an implied agency in Wegley, to act for the appellee in receiving the principal of this mortgage, to require the submission of the case to a jury. The only inference deducible from all the testimony with respect to the satisfaction piece is that it was a forgery and there is no suggestion that Wegley had a warrant of attorney to satisfy the mortgage. The mere fact that he was an attorney at law gave him no more authority to satisfy the mortgage than would be possessed by any other individual, and this would be equally true even if the evidence were conclusive that the relationship of attorney and client existed between him and the appellee. That the debt secured by the bond and mortgage was paid to Wegley in behalf of the owner of the property bound *41 by the lien of the mortgage is beyond question. Aside therefore from the question of the satisfaction of the mortgage, if Wegley had authority to receive this payment as the agent of the appellee the debt has been paid to her and the judgment should be opened.
The rule applicable to the situation arising in this case is thus expressed in the syllabus of the case of Beal and Simons v. The Adams Express Co.,
Appellants endeavor to meet the burden thus imposed upon them by referring to the general course of dealing for a period of approximately fifteen years between the appellee and Wegley, referred to in the earlier portion of this opinion, and rely particularly upon the testimony of the appellee to the effect that in the instance of a certain loan of her money made in 1910 by Wegley to the same W. Riley Alter in the amount of $3000, the proceeds of that particular mortgage were paid to her through Williams, Wegley and Doran, and that in the case of the other mortgage given by appellants upon the other lot, Mo. 957, at the same time the mortgage directly involved in this proceeding was given, the proceeds of this other mortgage were paid through Wegley, and that she at his instance executed a satisfaction piece on October 31, 1923, for this mortgage, which was acknowledged before Wegley and witnessed by her husband, and then permitted Wegley to transfer the mortgage to another property.
In support of their contention that the disputed facts *42
relative to Wegley's alleged agency should have been submitted to a jury they cite as their leading case Colonial Trust Co. v. Davis,
To the same effect is the ease of Fischer v. Hale,
Referring again to the case of Colonial Trust Company v. Davis, supra, relied upon by appellants, it is to be noted that the mortgagee in that case was a trust company doing business in the city of Reading and had as its representative in making loans for it on real estate situated in the city of Wilkes-Barre one Larned, a real estate and insurance agent. It was admitted that Larned had authority to place money at interest on behalf of the mortgagee and during a period of fourteen years had made loans for it in the aggregate amount of $253,000. It was not disputed that Larned collected interest from mortgagors and frequently payments of principal and the secretary and treasurer of the mortgagee testified that payments on account *46
of principal usually came through Larned and that his company had no office or place of business in Wilkes-Barre except through Larned. The proceeding in that case was a scire facias sur mortgage and the defense was payment in full of principal and interest to Larned, "the duly authorized agent to receive payment for plaintiff." Larned having failed to pay over to the plaintiff the amount collected and his authority to receive the payment on plaintiff's behalf being denied, the trial judge submitted the question to the jury who found Larned received the payment as plaintiff's agent. In delivering the opinion of our Supreme Court Mr. Justice FRAZER said, "While the mere fact of Larned's employment to make mortgage loans, prepare necessary papers and attend to the settlement would not vest in him authority from the mortgagee to collect the principal of the mortgage, we find ample in the foregoing recital of the facts touching the course of dealing between him and plaintiff to warrant the conclusion that his authority extended beyond the mere making of loans and included the power to receive both principal and interest on behalf of plaintiff. The distinction between this case and those relied on by plaintiff, of which Mynick v. Bickings,
In our opinion this case is clearly distinguishable, under the facts, from the case at bar. It should be further noted in the present case that, as between Mrs. Peters and Alter, there was no authorization, request, suggestion or permission from her to him to have the *47 money paid to Wegley, nor was there any ratification by her of such payment, nor did Alter ever demand the return of his bond and mortgage or instruct Colaianni to require the production by Wegley of any authority to receive payment.
We have probably discussed the questions arising upon this appeal in greater detail than under the authorities we are required to do for the purpose of ascertaining whether there has been any abuse of discretion by the court below, but as it is a case in which both parties to the issue are innocent of any intentional wrongdoing and yet one of them must suffer through Wegley's embezzlement, we have given careful consideration to all the evidence in order that the rule of law applicable to the situation here arising may be properly applied to the facts. That rule, as stated in Froio v. Armstrong, (No. 1),
Under all the facts disclosed by the evidence in this case we are of opinion that the commissioner and the court below were fully justified in concluding that the loss must fall on appellants. We are also satisfied that there was no abuse of discretion by the court below in refusing to open the judgment.
The assignments of error are dismissed and the decree affirmed.