80 Minn. 344 | Minn. | 1900
The plaintiff brought this action to foreclose a mortgage of $600 executed by defendants Eichhorn. The answer of defendants Bailey and Lowe alleged that plaintiff’s mortgage was made without consideration, and that defendants Eichhorn had executed to J. L. Mason, administrator of the Bailey estate, a prior mortgage of $500 upon the same premises of which defendant Bailey, as administratrix, had become owner, and in which defendant Lowe, as heir, had an interest. The trial resulted in an order for judgment for plaintiff, and defendants appealed from an order denying a new trial.
The appeal presents only one question requiring notice, and that is whether the $500 mortgage was paid at the time plaintiff’s mortgage was executed. The court found that the $500 mortgage was paid on or about March 19, 1896, and we are of the opinion that the finding is supported by the evidence. The consideration of this question leads to an examination of the evidence as to the authority of the now famous firm of A. F. & L. E. Kelley to collect the Bailey $500 mortgage debt. It will not be advisable to refer in detail to all of the evidence bearing upon that point.
It appears from the record that J. L. Mason, administrator of the estate of J. Warren Bailey, deceased, of Vermont, had for some years prior to his death, in 1889, made mortgage loans for that estate through the Kelleys, who were loan agents at Minneapolis, Minnesota. The heirs of the estate are defendant Harriet Bailey, the wife of the deceased and administratrix, and two daughters,
We will now consider the evidence in reference to the payment of the mortgage debt. The last extension of this note expired about March 16, 1896. It does not appear where the note was at that time. It was claimed by defendants to have been lost while in their possession, and the Kelleys claimed to have had it in their possession in 1893, but it could not be found at the time of the trial, and, as before stated, it had been extended twice. It also appears that there was a second mortgage for $100 on the same premises, known as the “Baker mortgage,” which also matured about the same time. On March 16,1896, the Kelleys notified defendant Eichhorn that both mortgages were due and must be paid. Thereupon defendants employed one Peterson to arrange for a settlement or extension. .The result of Peterson’s negotiations with the Kelleys was that a new mortgage for $600 to take up the old mortgages was made out to plaintiff upon the same premises, and defendants Eich
Without further reference to the record, we are satisfied that the finding complained of is fully sustained by the evidence. The Kelleys had authority to collect the note at its maturity. They did not collect the cash from defendants, but changed the mortgage over to plaintiff, and gave the defendants credit upon their books for that amount, which is the same thing in effect. This question has been fully considered and settled upon very much the same state of facts in Hare v. Bailey, 73 Minn. 409, 76 N. W. 213.
It is claimed, however, that because the Kelleys were insolvent at the time, and their bank account was overdrawn, the process of charging and crediting was of no effect. In our opinion, it is immaterial whether they were solvent or insolvent; whether they had funds in the bank, or their account was overdrawn., The decision in Hare v. Bailey, supra, does not depend upon the fact that the money of Dean was placed in the bank to his credit, and was actually there at the time the amount of the Hare mortgage was credited to Bailey. What is said in that connection in the opinion is by way of illustration. For whom were the Kelleys acting when they charged plaintiff and credited defendant Lowe? They were acting for plaintiff in making the loan for him, and his money was in their possession for that purpose. They were acting for the Eichhorns in procuring an arrangement which would renew the old mortgages. They were acting for defendants Lowe and Bailey in collecting the
We will further note that defendant Lowe had recognized the authority of the Kelleys to deal with her directly in reference to the mortgage debt, hence she cannot now question the fact that the credit was given to her on the books instead of to the real owners, of which she was one.
The testimony as to the payment of $350 was properly stricken out, for the reason that it was not proper cross-examination. It further appeared that it was not the best evidence, and no issue was made on that point.
Order affirmed.