154 A. 797 | Pa. | 1931
This appeal by defendants, is from the lower court's refusal to open a judgment entered upon a bond accompanying a mortgage. The record discloses nothing to indicate that the court abused its discretion therein. In May, 1918, J. E. Tracy, a real estate agent at Greensburg, negotiated the purchase of a house and lot on Concord Street in that city for the defendants, Philip Duke and wife. They needed $2,000 to complete the purchase, which Tracy secured for them by a loan on the property. This he negotiated through Bell Bell, attorneys for the plaintiff, Lottie Pore, and for which the defendants gave her the mortgage and bond in suit, the business being done through the attorneys. The loan was for three years, with semiannual interest. The defendants paid Tracy the interest and, commencing in October, 1918, installments upon the principal, so that by November, 1920, they had paid him sufficient to liquidate the entire loan, principal and interest, for which they had taken his receipts. They were not familiar with business and treated him as the proper one to whom payments should be made, although he had neither real nor apparent authority to receive the same.
Tracy embezzled the $2,000 so paid him on account of the loan, but, to hide his crime, paid the plaintiff, through Bell Bell, her attorneys, the semiannual interest on the loan, as it fell due, until he fled in the summer of 1928. Plaintiff was content to let the loan remain so long as the interest was paid promptly and the defendants, as they had Tracy's receipts in full, never gave the matter a thought. This is a hard case, but the question of who must bear the loss is not difficult of solution. Plaintiff never knew Tracy and never constituted him *531 her agent, directly or indirectly. So far as he paid her attorneys the interest money it was all right, but in that, as in negotiating the loan, he was acting for defendants and the commissioner and lower court properly so find. In paying him, they assumed the risk of his honesty. Tracy did not even sign the receipts as agent for Mrs. Pore or even as agent. Her name does not appear therein.
The burden of proving an agency is on him who asserts it: Dobbs Exr. v. Zink et ux.,
The defense sets up the ingenious theory of a general agency in Bell Bell and that, hence, plaintiff is concluded by the manner in which they did business for other clients. If this could be conceded, which it cannot, it would not avail defendants; for while Tracy occasionally paid Bell Bell, as attorneys for other clients, small amounts to apply on the principal of loans, it does not appear whether in so doing he was acting as agent for Bell Bell or for the debtors in such loans. Had Tracy been clothed with authority to collect the interest on the loan, which he was not, it would have given him no right to collect the principal: Williams v. Cook,
While the defendants, as hard working people, are entitled to sympathy, yet they did the business so regardless of common prudence as to deprive them of any legal relief. Controlling importance cannot be given to the fact that the defendants paid their money to Tracy long before the due date of the mortgage, nor to the fact that plaintiff allowed it to remain uncollected for years afterward. They were striving to get free of debt and she was glad to leave her money well invested. It is unnecessary to refer to the several cases cited for appellants, for in no case so cited are the controlling facts similar to those presented by this record.
The judgment is affirmed.