113 Kan. 62 | Kan. | 1923
The opinion of the court was delivered by
This was an action by the Pioneer Mortgage Company against John L. Randall and others, to foreclose a mortgage on a farm in Lyon county. The defendants claimed to have made payment to Edward J. Conklin as agent of the plaintiff. Judgment was for defendants, and plaintiff appeals.
The original note and mortgage was for $1,500 executed on the 22d of September, 1914, and payable October 1, 1921. Interest was payable semiannually. The petition alleged that interest which fell due on April 1, 1920, was not paid, the principal indebtedness thereby became due and the mortgage subject to foreclosure. In
Plaintiff filed a verified reply to the answer of defendants in which it 'specifically denied that Conklin was the agent of the plaintiff or was recognized or held out by the- plaintiff in any form or manner as its agent with authority to accept or receive payment of the mortgage indebtedness of defendants or any other person; also, that, at the time of making the loan to the Randalls, plaintiff mailed them a notice containing the words, “Make all remittances payable to the order of the Pioneer Mortgage Company, Mulvane Building, Topeka, Kansas, otherwise we will assume no responsibility in the matter,” and that, “Shortly prior to the maturity of each of the interest coupons attached to the note secured by the mortgage, . . . plaintiff mailed to said answering defendants a printed notice . . . ‘No one is authorized to collect -for us. Make all remittances direct to The Pioneer Mortgage Company, Topeka, Kansas.’ ”
Sometime after the execution by the Randalls of the mortgage to the Southwestern Farm Mortgage Company, but before the same was paid by Samuels, Conklin absconded.
To support their contention defendants introduced a large number of letters showing Conklin to have been negotiating loans for plaintiff, paying out the proceeds of loans, taking up .outstanding
We find in the record no testimony showing express authority to Conklin to collect for the plaintiff, nor is there evidence of dealings between the plaintiff and Conklin brought home to the defendants before the alleged payment that would justify the defendants in presuming such agency or that would estop plaintiff from denying it.
In Goodyear v. Williams, 73 Kan. 192, 85 Pac. 300, it was said in the syllabus:
“Where a debtor delivers money to a third person for the purpose of paying a promissory note which is not due, and such person does not have the note in' his possession, the presumption is that the person receiving the money does so not as the agent of the creditor but as agent for the debtor. This presumption can only be overcome and the converse established by evidence to the contrary.” (¶ 2.)
And in the opinion it was said:
“The presumption of agency from the possession of the note by the person claiming payment is ordinarily sufficient in itself to justify the debtor in making the payment, and the want of such possession is of itself sufficient to put the debtor upon inquiry as to the authority of the agent to receive payment. If this be so, it would seem that the circumstances must be strong, in the absence of direct authority from the creditor, that would justify a debtor in paying a note, especially one not due, to a pretended agent so as to bind the creditor thereby. Such circumstances, it would seem, must practically amount to an estoppel upon the creditor to deny the authority of the agent— ah estoppel in pais.” (p. 195.)
Testimony by defendants of statements by Conklin were not sufficient to bind the plaintiff.
It was further said in Goodyear v. Williams, supra:
“The evidence of Williams as to what Goode said in regard to the payment of the interest coupons to him would only be competent after the agency of Goode was established, and is incompetent for the purpose of establishing such agency.” (p. 195.)
“Q. Upon receipt of the Randall note by your bank state in what manner and how your bank held the same? A. The Wm. S. Randall note was held by us as collateral to the note of the Southwestern Farm Mortgage Company, of Emporia, Kansas.
“Q. If you have any correspondence relative to the proceeds of such note and payment thereof, and I refer to the $10,000 note, kindly set out copy thereof as part of this deposition. A. The proceeds of the note of the Southwestern Farm Mortgage Company for $10,000 were placed to their credit, and on May 16, 1919, we honored their draft for $10,000.”
The Southwestern Farm Mortgage Company was a corporation of which Conklin was, at the time, president and general manager.
We find no testimony in the record showing that the Southwestern Farm Mortgage Company turned over or paid to Conklin the $1,500
The fact that Conklin never held the interest coupons for collection and did not have possession of the note and mortgage was of itself sufficient to put the Randalls on inquiry as to his authority to collect for the plaintiff. Moreover, the plaintiff was exceedingly diligent in its efforts to prevent those to whom it loaned money from making the vital mistake disclosed in this instance. Twice each year it notified them of the interest payment and each time specifically stated that, “No one is authorized to collect for us. Make all remittances direct to The Pioneer Mortgage Company, Topeka, Kansas.” The Randalls utterly disregarded these instructions. Under all of the circumstances, it is proper that the plaintiff should recover.
The judgment is reversed and remanded, with directions to enter judgment for the plaintiff.