85 Iowa 543 | Iowa | 1892
December 28, 1878, tbe defendant John T. Gfraybeal, being tbe owner of certain land in: Polk county, Iowa, made a loan of eigbt bundred dollars tbereon of William Bolles of Hartford, Connecticut. Tbe loan was to run for five years, and was secured by mortgage on said land, in tbe execution of wbicb bis wife joined. October 28, 1882, said Bolles sold and assigned said note and mortgage to tbe plaintiff. Some time subsequent to tbe execution of tbe mortgage (tbe exact date does not appear) Gfraybeal and wife sold the land to tbe defendant Mally. To tbe plaintiff’s petition for a foreclosure of tbe mortgage, wbicb is in tbe usual form, tbe defendants plead that on June 26,1883, tbe defendant John T. Gfraybeal paid to said Bolles, tbe then owner of tbe note and mortgage, eight hundred and sixty-three dollars and thirty-three cents, tbe amount then accrued tbereon. It seems Gfraybeal made application for tbe loan to and procured it through one Hugh R. Creighton, then a loan agent at Des Moines. After this mortgage bad been executed, tbe defendant Gfraybeal placed another mortgage on bis land, and also became indebted to various parties, some of whom bad reduced their claims to judgment. For tbe purpose of paying off bis indebtedness, be made application to said Creighton for another loan of three thousand dollars on tbe land, given as security in tbe former mortgage, as well as upon other lands. This' application was made April 28, 1883, and it is claimed by Gfraybeal that Creighton was to make tbe three thousand dollar loan, procuring tbe money wherever be could, and to pay off the Bolles and tbe other mortgages and .certain judgments out of tbe money, and tbe balance was to be turned over to him. June 26, 1883, it is claimed that Creighton bad placed tbe three thousand dollar application and procured tbe money, but this is by no means clear from tbe testimony. Gfraybeal
I. To establish the fact that Creighton in receiving so much of the three thousand dollar loan as was
II. It is clear to our minds that in procuring the three thousand dollar loan Creighton was the agent of
Furthermore, there is no evidence that Creighton was ever authorized to collect the Bolles loan. It was not yet due, and, so far as Bolles was concerned, there was no occasion to collect it, or to authorize any one so to do. Indeed it is not claimed that Bolles ever gave Creighton any special authority to collect the loan. It is insisted, however, that the letters which passed between Bolles and Creighton show a general authority to collect all his loans, whether due or not, but the evidence does not sustain this theory. Creighton was conducting an independent business — that of a loan agency. New England Mortgage Security Co. v. Townes, 1 South. Rep. (Miss.) 242. It appears that Bolles at all times during his dealings with Creighton reserved and exercised the right of accepting or rejecting Creighton’s applications for loans; that in nearly all cases Bolles refused to send notes, mortgages or interest coupons to Creighton until the money had
The evidence also shows that Graybeal never received the interest coupons from Creighton at the time he paid the interest, and the former says he supposes this was because he had to remit the money to the party holding the bond and coupon before he could get the coupon. It appears from the testimony of witness, Porter who seems to have been assisting Mr. Graybeal in this loan transaction, that in a statement given him for Graybeal in the winter of 1884 by Creighton, the latter had charged Graybeal interest on this Bolles loan up to November 17, 1884, — a year after Graybeal and Porter claim it was paid by the application of a part of the three thousand dollar loan. True, Porter says he did not examine it, but it clearly indicates that the fact that the Bolles loan had not been paid was called to the attention of Graybeal and Porter by Creighton over a year after he had, as they claim, received the proceeds of the three thousand dollar loan. We have carefully examined all the testimony, and are fully satisfied that Creighton was not in fact the agent of Bolles to receive this money; that neither Bolles nor the plaintiff did anything to induce Graybeal to believe that Creighton was authorized to-receive the money on the Bolles loan. There are no facts in this case from which Graybeal had a right to suppose that Creighton had authority to receive the money on the Bolles mortgage. In principle.this case is like Hippee v. Pond, 77 Iowa, 236. See, also, Artley v. Morrison, 73 Iowa, 132.
The judgment of the court below is reversed.