Sargeant v. Solberg

22 Wis. 132 | Wis. | 1867

Lead Opinion

Cole, J.

¥e think there was no error in admitting parol testimony to identify tbe wood embraced in tbe mortgage. It is contended that tbe wood should bave been described in such a manner that a mere inspection of tbe mortgage, without reference to any other evidence or source of information, would enable one to identify the property mortgaged; and that unless tbe property is thus described, tbe instrument is void for uncertainty. It would undoubtedly be a very desirable rule, if it were possible, to describe tbe property mortgaged so that one could ascertain from tbe face of tbe instrument itself what property was intended to be embraced therein. But it is evident that resort must frequently be bad to parol evidence to apply tbe description in tbe mortgage. It is not readily perceived bow tbe description of tbe wood in this case could bave been more certain and specific. And as there were other piles of wood on tbe same lot, it was necessary to resort to extrinsic proof to identify tbe property. Under tbe circumstances, we suppose tbe evidence was admissible for that purpose. Harding v. Coburn, 12 Met., 333; The Mil. & Minn. R. R. Co. v. Mil. & West. R. R. Co., 20 Wis., 174, and authorities referred to on page 187.

Again, it is insisted that the facts in the case sbow that there was no valid delivery of the mortgage prior to the seizure of the property on the execution; and tliat the case is ruled by the decision in Welch v. Sackett, 12 Wis., 243. The cases, however, are readily distinguishable. In Welch v. Sackett, the mortgagor executed the chattel mortgages in the absence and without the knowledge of the mortgagees, and banded them to bis own attorney, with a declaration that be delivered them for the use of the mortgagees. And it was held that the title to the property mortgaged did not vest in the mortgagees, so as to defeat^an attachment levied upon the same property, by a creditor of the mortgagor, after the delivery of the mortgages to the attorney and prior to the time when the mortgagees received notice of the execution of the instruments, and accepted them. But here, we think, the evidence shows that Barlow was authorized by the mortgagee to accept the mortgage and file it in the clerk’s office for him. For, in the letter which Sargeant sent to Barlow with the $200, be says: “Would you be kind enough to invest the same for me in any manner you think best ? If you will do so, you will confer á favor. I am not particular what use you put the money to, so that I could get it when I come back.” Beyond all controversy, this letter gives Barlow full authority to invest the $200 in any manner the agent ■ might think best, so that the investment was safe and Sargeant. could receive the money on bis return from the war. Now suppose Barlow bad loaned the money to some third party; can there be a doubt upon the question, whether be was fully authorized to accept for Sargeant any chattel mortgage which might be given to secure its repayment ? It seems to us that there could not possibly be any doubt upon that point. Being fully authorized to loan the money, be bad the right to take any security for its repayment on behalf of bis principal. And this circumstance distinguishes the case from that of Welch v. Sackett. There the instruments were handed to the attorney of the mortgagor, who was not authorized to act for the mortgagees in accepting a deliveiy of them. But could the agent apply the money to his own use, and execute and file the mortgage for the use of the principal ? It is assumed that he could not do this, and that it was a clear violation of his duty thus to appropriate the money. However the rule might be if the principal were dissatisfied with the use which had been made of his money, and were endeavoring to repudiate the transaction, clearly the mortgage is only void at his election. If he chooses to ratify what has been done by his agent, and treats the mortgage as valid, upon what principle of law or public policy can strangers interfere and claim that the mortgage is void because the agent made an unauthorized use of the money? Here the mortgagee is satisfied with the security — has fully ratified and approved the use made of his money, and seeks, to have the benefit of the security. And it is objected by some third party, that he cannot avail himself of the chattel mortgage, because it was incompatible with the duties of Barlow to make the use of the money he did. It seems to us that if the principal is satisfied with the loan and security, others have no right to complain. They cannot avoid the chattel mortgage made by the agent for the benefit of the principal, even if it be conceded that, under the circumstances, the principal might have treated the transaction as unauthorized.

It is further insisted that the plaintiff was bound to show afiirmatively the bona fides of the transaction, claiming the property under a chattel mortgage. This we think he did do, so as fully to meet the requirements of chapter 458, Laws of 1864.

By the Court. — The judgment of the circuit court is affirmed.

---

Rehearing

On motion for a rehearing, appellant’s counsel, among other things, insisted that Barlow, as plaintiff’s agent to loan money, could not make a loan to himself and accept from himself security therefor (citing Claflin v. F. & C. Bank, 24 How. Pr. R., 1, 15; Dobson v. Racey, 3 Sandf. Ch., 60; N. Y. Central Ins. Co. v. National Protection Ins. Co., 14 N. Y., 85-91); that the mortgage was therefore not valid until accepted by the plaintiff, after the levy made; and that such acceptance would not relate back to the execution and filing of the instrument, so as to affect intervening rights. Welsh v. Sackett, 12 Wis., 243; Culver v. Ashley, 1 Am. L. C. (2d ed.), 592, and authorities there cited. 2. If Barlow was plaintiff’s general agent, he could withdraw the mortgage from the files at any time. He could consider it delivered or not at his option. In some of the cases referred to in Welsh v. Sackett, it was claimed that a contract ought to be held valid where the maker had, by delivery to a third person, placed it beyond his control, or power to revoke; but this court held that position untenable. The delivery here was still more defective. Again, if Barlow, as plaintiff’s agent, could accept the mortgage, by parity of reasoning his possession of the mortgaged property was the possession of the principal, and it was not necessary to file the mortgage at all. — Counsel further contended that plaintiff’s letter, under which Barlow claimed the powers of an agent, must be strictly interpreted (Story on Agency, §§ 68, 69; 1 Am. L. C., 547, 550), and that so interpreted it did not authorize Barlow to use the money for his own purposes, nor even to loan it and accept securities from other parties, but only to purchase some property which would be a safe investment. ■ It shows a personal trust, which Barlow did not agree to accept or act upon; and if he converted the money to his own use, and so became liable to the plaintiff •therefor, without any previous agreement to give security, the mortgage was void under the- decision in Welsh v. Sackett.

Rehearing denied.