18 Iowa 499 | Iowa | 1865
The plaintiff, in answer to Davis’ letter, refused to sanction his settlement, or to take anything except the debt and interest, of which the defendant was at once notified. The case turns entirely upon the question, whether the plaintiff or Bowen, Holmes & Co. were bound by the agreement and acts of Clarke & Davis. *
But still, if Avery led the defendant to believe that Clarke & Davis had authority to settle without the note, and the defendant acted in good faith upon the belief thus superinduced, the settlement would then be binding, although, in point of fact, no authority to settle was ever conferred. Taking the defendant’s own version of the matter, and that of Edmonds, his attorney, and it pretty clearly appears that Clarke & Davis, at the time of Avery’s interview with the defendant, did not then have authority to settle; but A very simply expressed his intention to leave the note with or send it to them, and then give them authority to settle. This intention he did not, for some unexplained reason, carry out, and the defendant had no vested right that it should be carried out. It is an undisputed fact in the case that the defendant knew all the time that Clarke & Davis had not possession of the note, and the law justly attaches great importance to the possession of a note by an agent as showing his authority, and equally great importance to the want of possession, as evidence of a want of authority. (Dunl. Pal. Agency, 274, 275, notes and cases there cited.)
So that it may be laid down as the general rule, that if a debtor, owing money on a written security, pays to or settles with another as agent, it is his duty, at his peril, to see that the person thus paid, or settled with is in possession of the security. If not thus in possession, the debtor must show that the person to whom he pays or with whom he settles has special authority, or has been represented by the
The circumstances tend strongly to corroborate Davis’ testimony, that he made the agreement as to the note in suit at the defendant’s request, both parties knowing that there was no authority, but both in good faith believing that authority would, without doubt, be granted. In truth, the defendant, in his testimony, while he makes some general statements not easily reconcilable with this portion of Davis’ testimony, does not specifically, pointedly, or in detail, deny the fads stated by Davis. If he had, we could not have disturbed the finding of the jury.
The defendant and Davis miscalculated in supposing that the note would be sent to Davis with authority to settle; but the plaintiff should not be visited with the effects of this miscalculation.
It is our opinion that the court below should have granted a new trial. On the evidence before the jury, the verdict should most clearly have been for the plaintiff. If, upon the nest trial, the defendant can satisfy the jury, by the weight of evidence, that he acted upon Avery’s statement, that Davis did not sign the agreement at his request» with the promise to write for and obtain authority to settle, but held out and pretended that he was then already clothed with power to make the agreement, he will then make out a defense, provided the jury further find that Avery represented that Clarke & Davis had authority to settle, although not in possession of the note. In making this ruling, we are not unmindful of the rule that we cannot interfere in a case turning upon the evidence, if the case is nicely balanced or the material testimony essentially conflicting.
• But not to interfere in some cases is to sanction and hallow the mistakes which juries will sometimes make, and to leave the party injured, by a hasty and mistaken verdict, remediless. Beversed.