109 Neb. 805 | Neb. | 1923
Plaintiff brought suit in the district court for Hamil- . ton county to foreclose a mortgage upon 80 acres of land therein situated. From a decree finding that the note, which the mortgage was given to secure, had been fully-paid and dismissing plaintiff’s suit, plaintiff appeals.
The case is another one of a class of which there have been many before this court at one time or another
Plaintiff’s petition is in the usual form of one seeking the foreclosure of a real estate mortgage. Defendant’s answer narrates a brief history of the transaction in question, alleges .the good faith of the defendant, in all that he did in respect thereto, his entire lack of knowledge or notice, actual or constructive, of the fact that plaintiff was the assignee of the mortgage in suit or had any interest therein; the agency of the Wentz Company in its relation to the plaintiff ' throughout the transaction; defendant’s paym'ent in full of said note and mortgage; a-denial of any lien or claim of plaintiff against the land in question, and the estoppel of plaintiff as against the defendant to the' relief she seeks. The reply of plaintiff denies all matter in defendant’s answer not admitted in the petition.
The evidence supports the . material allegations of defendant’s answer, and, without serious dispute, is, in substance, as follows: That W. C. Wentz was in the real estate, loan, brokerage and investment banking-business in Aurora, Nebraska, for a period, of about 40 years prior to the transaction in question; that he. did business as W. C. Wentz, unincorporated, up to March, 1906, at which time he incorporated the business under the. same name; that at all times both before and after incorporation W. C-. 'Wentz was virtually the sole owner and in exclusive control of' the business until some time in 1918, when he sold the same to his son, Charles W. Wentz, who thereafter ' was the sole owner and in control of the busihess; that for convenience in handling • loans the same -were generally taken in the name of W. C. Wentz while he was owner, and in the name of Charles W. Wentz after he became owner; that on January 2, 1914, the defendants, Lysinger and wife, old and well-known residents of Hamilton county, borrowed $2,000 from the said Wentz Company, giving their mote therefor due January 1, 1919, with ten
The principal question for decision then is: Was the Wentz Company, as represented first by W. ■ C. Wentz and later by Charles W. Wentz, the agent of plaintiff in collecting the interest and principal due her as assignee of the mortgage in suit? That "must be determined alone from a just consideration of the facts above detailéd, together with such proper, inferences as may be drawn therefrom. The facts speak for themselves, and no amount of comment thereon can add force to the conclusion which these facts compel. After due consideration of the same, we have no hesitation whatever in " declaring that the Wentz Company, as thus represented, was the agent of the plaintiff at all times in doing what it did in the collection of all moneys due plaintiff upon her mortgage, and, "as such, plaintiff is bound by' its acts in that regard. It probably does not appear from the evidence that plaintiff created that company her agent by express words, but that by. her own acts and her acquiescence in the acts of the representatives of ■ said. company in acting for her in the collection of money due upon her mortgage from the mortgagor through a period of six and a half years she created that company her ostensible agent there can be no question, and that is sufficient. '
“Ostensible authority to act as agent may be conferred if the party to be charged as principal affirmatively, of intentionally, or by lack of ordinary care, causes or allows third' persons to trust and act upon such apparent agency.” Thomson v. Shelton, 49 Neb. 644. See, also, Phœnix Ins. Co. v. Walter, 51 Neb. 182; Pine
We infer from plaintiff’s brief that she does not seriously dispute the fact that the company mentioned had authority to collect the various instalments of * interest, 'but contends that authority to collect interest does not necessarily imply the authority to collect the principal. This is probably true, except, however, as the facts and circumstances surrounding the particular •case justify the implication. We think the facts and circumstances surrounding the present case do justify the implication in this instance. The bond and mortgage were made to Wentz in the first instance.. The defendant never knew any one else in the transaction but Wentz In the canceled coupons or other receipts given defendant for payments made there never was revealed the name of any other person as having any ownership or interest in the mortgage than Wentz. Even if it were proper to infer from - Wentz’s statement to defendant, when the latter requested a release of the old mortgage, that /‘you will have to wait until I get this money from the,'east,” that the bond and mortgage were therefore held by some person in the east, yet it was perfectly natural ,t,o believe that the person in the east, whoever he may be, would require some local agent to attend to the collection, of Ms mortgage when it was apparent he was not doing so himself. Who was more likely to have that authority. than Wentz? He was the only one, so far as defendant knew, who had the apparent authority to act in the matter. The note and mortgage never were in the east; they were in the possession and control of either Wentz or the plaintiff at all times, neither of whom at any time ever disclosed to the defendant plaintiff’s interest therein. We are satisfied that the facts and circumstances justified defendant in paying the principal as well as the interest
Plaintiff’s next proposition is that the authority of an agent to collect his principal’s debt does not include the authority to accept as payment anything but money. Assuming this also to be true, plaintiff’s assumption that Wentz satisfied her mortgage with anything but the payment of money is not sustained by the record. Upon the taking of the new mortgage from defendant, Wentz received |2,000 in cash to be applied in satisfaction of plaintiff’s mortgage. The fact that he obtained the money through the medium of the sale of a second mortgage can make no difference to plaintiff. That he secured this cash in payment of plaintiff’s mortgage and for the express purpose of appropriating the same to plaintiff’s use and benefit is evidenced by the fact that he immediately entered the amount to her credit on the books of the company. That her agent Wentz may have kept the fact of this collection secret from plaintiff, or that a year or more thereafter he may have converted or embezzled the money so collected, as he may have done in many other instances, cannot alter the situation. Plaintiff’s money was there to her credit. It was at her command at all times. In the sense of liability therefor it is there yet. For the fact that eventually it may be lost, plaintiff’s lack of ordinary diligence and her agent’s perfidy are alone responsible. Defendant was an old resident and well-known landowner of Hamilton county. Plaintiff knew it was his mortgage she held; he was ignorant of the fact; had she notified him at some time during the life of the mortgage of her ownership therein doubtless her loss'would have been spared her. But plaintiff did nothing in that regard and she must bear the natural consequences of her own negligence. That the result of" sd- holding is a hardship upon plaintiff may be admitted';' That to hold otherjvise would be a hardship upon défehdant must also be conceded. In such a case' the fáíniliar and well-
We are of the opinion that the ■ decree of the lower court is right and it is therefore, in all things,
Affirmed.
