52 Ind. App. 124 | Ind. Ct. App. | 1913
The complaint in this case is in one paragraph and avers, in substance, that on the 6th'day of January, 1908, appellees were the owners of certain described real estate, which they on said day," by a deed of general warranty, conveyed to appellant to secure the payment of a note, for the sum of $500, on said day executed by appellees as evidence of a loan then made by appellant to appellees: that at the same time and as a part of the same transaction the appellant by her agreement in writing, which is set out
Appellees ask that appellant be compelled to execute to appellees a deed to the real estate so conveyed by -them, that they be declared to be the owners of the same, and that their title thereto be quieted. A demurrer to this complaint was overruled, and appellant filed her answer in denial and a cross-complaint. The cross-complaint alleges the execution and delivery of the several instruments mentioned in the complaint, and sets out each, and avers, in substance, that the deed mentioned was executed to secure the payment of the note, and that it and the written agreement to reconvey were intended as a mortgage and should be so construed.
The averments of the complaint and cross-complaint are in substance and effect the same, except that the complaint avers the payment' of the note and compliance with the terms of the agreement, and asks a reconveyance of the real estate according to the terms of the agreement, and that appellees ’ title be quieted therein, while the cross-complaint alleges that the note is unpaid and other violations of the terms of said agreement, and asks that the deed be declared a mortgage and for a foreclosure and sale of the mortgaged premises to satisfy the debt. A denial to the cross-complaint closed the issues. Pursuant to the request of appellant, the court made a special finding of facts and stated its conclusions of law thereon. On this finding there was judgment for appellees.
The assigned error presenting the ruling on this motion is the only question discussed in appellant’s brief. In fact, the only question presented by appellant’s counsel in their brief under their points and authorities or discussed in their argument is the sufficiency of the evidence to sustain the decision.
Appellees about the last of December, 1907, having theretofore been informed that Louis J. Herman, a practicing attorney of the city of Evansville, had a client or clients who had money to loan, applied to said Herman for a loan of $5C0, and on the 6th day' of January, 1908, appellees borrowed of appellant said sum, for which they executed to appellant their note for that amount, payable three years after date at the Commercial Bank, Evansville, Indiana, with 7 per cent interest after date. Neither of appellees had any personal acquaintance with the appellant. They had never seen her, and had no conversation or dealings with her, except through said Herman. The execution and delivery of the other papers mentioned in the complaint are found and their contents set out, and the findings then proceed, in substance, as follows: (4) and (5) That before making said
It is insisted by appellant that if it can be said that the evidence tends to show that said Herman was acting for appellant at any time or in any capacity, that it at most only shows that he acted for her in the negotiation of the loan and the preparation of the papers evidencing and securing the same, and that appellees had no right to assume that he was acting for her in the collection of such loan.
In addition to the evidence which warranted the finding of said facts, in effect conceded by appellant to be correctly found, we have the following letter from Mr. Herman to Mr. McCool:
Louis J. Herman.
Rookery Bldg.
Telephone 324, 127 Fourth St.
Evansville, Indiana.
June 30, 1908.
Dr. Henry F. McCool,
City.
Dear Sir:—
On my return to the office my stenographer informed me that you desired to pay off the entire loan held by Father Ewers and Mrs. Wagner. In looking over the papers I find the following clause in the Wagner loan:
‘Said Henry F. McCool and Maggie N. McCool are hereby given the right to pay said Five Hundred ($500.00) Dollars on any annual anniversary of this contract. ’ I therefore see no way to accept this money until the end of the year, January 6th, 1909.
Upon examining the Ewers loan I find this clause:
‘In the event that said Emery McCool and Anna McCool his wife, or their assigns or legal representatives desire to pay any portion of said Twenty-two Hundred ($2,200.00) Dollars prior to the end of said three (3) years, then they shall have the right to do so at any semi-annual interest bearing period upon the payment of all interest due at that time and the money so paid shall be credited on said principal of $2,200.00 represented by said notes. ’ The semi-annual interest bearing period referred to in this clause was June 16th, 1908, and as you made no tender on that date I cannot see my way clear to accept payment of this loan until the next interest bearing period, which will be December 16th, 1908.
I would therefore ask that you send me the six months interest due on the $500.00 and also the six months interest due on the $2,200.00.
Very truly yours,
[Signed] Louis J. Herman.”
Another letter, which tends strongly to show that appellant had depended wholly on either her attorney, Herman, or Father Ewers, who in turn evidently entrusted all of said matters to said attorney, is as follows:
Dr. H. McCool
Evansville, Ind;
Dear Sir:—
Miss Margaret Wagner of this city, has left with me for adjustment a claim against you for $500.00. It seems that Mr. Louis J. Herman had something to do with this claim.
Will you please advise me the exact nature of the claim, as to whether same was secured and if so, how, and what has been done in the matter Í An early reply will be appreciated.
Tours truly,
[Signed] Henry Kister.”
Mr. McCool testified that Mr. Herman did not prepare the papers connected with the loan at his request; that he (McCool) “wanted to give a mortgage and he (Herman) said his client would not accept a mortgage.” Appellant testified, in effect, that she entrusted the entire matter of making and collecting this loan and four others to Father Ewers, in whose home she lived and for whom she kept house. In fact, she repeatedly stated and insisted with reference to all of said loans inquired about that she entrusted them all, both their making and collecting, to Father Ewers, and that she had nothing to do with Mr. Herman except through Father Ewers; yet on cross-examination she, in effect, admitted that she knew that said Ewers employed Herman to make the loans and prepare the papers, and that Herman collected the interest and principal of such loans and gave the same to Father Ewers, who would then turn such collections over to her; that she, before said loans were paid, gave the notes and securities to said Ewers to be surrendered, and that Herman made the collections.
Another witness — Mr. Davenport — an abstractor, testified that on one occasion wfien fie went to see Mr. Herman about an abstract of another tract of land on which Father Ewers fiad a loan, and in which appellees were interested, Mr. Herman in that connection said: “‘ I have a deed to turn over to Dr. McCool.’ And fie said ‘here is one Miss Wagner fiad a loan on.’ That I said, ‘I don’t know anything about that, the doctor [McCool] didn’t tell me a thing about that.’ He said, ‘well I have a deed to that too, that is due in a few days and I suppose fie wanted to pay all.’ ”
“The maxim of natural justice here applies with its full force, that fie, who, without intentional fraud, has enabled any person to do an act, which must fie injurious to himself, or to another innocent party, shall himself suffer the injury rather than tfie innocent party, who has placed con
A rule which seems to be fundamental in the law of agency is stated in Mechera, Agency §§283, 284 as follows: It is well settled that “the authority of the agent must depend, so far as it involves the rights of innocent third persons, who have relied thereon, upon the character bestowed, and not upon the instructions given, or, in other words, the principal is bound to third persons who have relied thereon and in ignorance of any limitations or restrictions, by the apparent authority he has given to the agent, and not by the actual or express authority. * * * A principal is responsible, either when he has given to an agent sufficient authority, or, when he justifies a party dealing with his agent in believing that he has given to this agent this authority.”
Judgment affirmed.
Note. — Reported in 100 N. E. 395. See, also, under (1) 31 Cyc. 1667; (2) 31 Cyc. 1658; (3) 31 Cyc. 1331.