51 Neb. 182 | Neb. | 1897
The plaintiff in error, on December 29,1893, commenced this action in tbe district court of Webster county to foreclose a mortgage oij, certain real estate described in the petition, and to enforce the payment of a principal note in the sum of $800 and accrued interest thereon, also an amount of taxes which had been assessed against the real estate and paid by plaintiff to protect its security. In the answer there were pleaded, payment of the amounts
At the times of the transactions from which evolved the present suit there was in existence in Red Cloud, this state, what was known as the Nebraska & Kansas Farm Loan Company, the business of which is sufficiently indicated by its title or designation. There was in Hartford, Connecticut, a firm of loan brokers doing business under the name and style of George W. Moore & Co., their office and principal place of business being the city last named. Of this firm one James H. Tallman was an active working member, and the business of the firm was the purchase and negotiation of western and southern farm loans. The plaintiff was an insurance company organized and existing under the laws of the state of Connecticut, with its principal office and place of business in Hartford. This insurance company had quite a large amount of money, a goodly sum of which it invested in farm loans. The manner in which the business between the Nebraska & Kansas Farm Loan Company and the firm of George W. Moore & Co. was conducted we will now state generally. At its inception, and until after the first two or three transactions (so it is stated by one witness who, during the greater portion of the time, was secretary of the loan company at Red Cloud), applications for loans were received from prospective borrowers by the company at Red Cloud, the se
The note and mortgage in suit were executed of date October 21, 1885, and were due October 1, 1890, payable to James H. Tallman, and pursuant to the business arrangement hereinbefore noticed between the loan company at Red Cloud and George W. Moore & Go., passed into the hands of the latter and were sold to the plaintiff. These, with a number of similar papers evidencing loans on Nebraska farms effected by the company at Red Cloud, and all of Avhich had been transmitted to George W. Moore & Go., and by this firm sold and assigned to the plaintiff and held by it, and all collections of interest or principal, also incidental matters in regard to taxes and their payment, renewals of insurance, etc., were supervised and performed by the firm of brokers and the Nebraska ■& Kansas Farm Loan Company, pursuant to the plan inaugurated by them, some of the details of which: we have hereinbefore set forth. The assignment of the mortgage in question to plaintiff was not recorded in
Q. Do you know one E. B. Cook, manager of the loan department of the Phoenix Insurance Company, plaintiff?
A. I had a slight acquaintance with him.
Q. When did you meet him?
A. About the first of October.
Q. What took place between you and him at that time?
A. Well, he came into the office with another gentleman, made himself known, and presented his credentials showing who he was, and asked if we had any money for him. I paid him some money [it appears in another portion of the evidence, about fáOO], and he wanted to know if we couldn’t pay him some more, and I told him no we couldn’t at that time; he commenced talking about these loans that the Phoenix Insurance Company had. He stated that they had an agent in this state, and wanted to know if it would be satisfactory to us to turn the business over to that agent. I told him as far as I was con*187 cerned I would be glad to get rid of it. I think that was the first I knew the Phoenix Insurance Company had any of these loans.
The foregoing is a statement, in substance, of some of the salient facts shown in the evidence at the trial of this cause, and from their consideration in connection with other material, competent facts in evidence, some of which were similar in intent and effect, we are convinced that there was sufficient to sustain a finding that even if it may be said that the Nebraska & Kansas Farm Loan Company did not have specific authority from or was not agent in fact for the plaintiff in the collection of the amount due on the mortgage herein sought to be enforced, it had ostensible authority to receive the money. (Reid v. Kellogg, 67 N. W. Rep. [S. Dak.], 687; Thomson v. Shelton, 49 Neb., 644.) Ostensible authority is such as a principal intentionally, or by want of ordinary care, causes or allows a third' person to believe the agent to possess. (Quinn v. Dresbach, 75 Cal., 159; 1 Parsons, Contracts, p. 44*; Kasson v. Noltner, 43 Wis., 650; Reid v. Kellogg, supra; Thomson v. Shelton, supra.) It is true that the note and mortgage were not in the hands of the loan company when it collected the money, and had not been at any time after their execution and transmission to George W. Moore & Co. at Hartford, but this was not conclusive of the fact of the existence of the authority to collect, but a fact or circumstance to be considered in connection with other matters of evidence bearing upon the subject. (Thomson v. Shelton, supra.) The evidence was sufficient to sustain the finding of the trial court; hence it will not be disturbed.
There are some further assignments of error argued in the briefs of counsel in reference to alleged errors committed in the admission of evidence. This was a trial to the court,, and if errors were committed in the admission of evidence, they are unavailable. That immaterial, illegal, or irrelevant evidence was admitted at the trial of a cause by the court without a jury furnishes no sufficient
Affirmed.