Land v. Reese

April 6, 1926. On petition for rehearing August 17, 1926. The opinion of the Court was delivered by The decree of Judge Memminger is satisfactory to us, and it is the judgment of this Court that the judgment of the Circuit Court be affirmed. Affirmed. MESSRS. JUSTICES COTHRAN, BLEASE and STABLER and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur. MR. CHIEF JUSTICE GARY did not participate. ON PETITION FOR REHEARING Mr. Justice Blease: While I concur with practically all the legal positions taken by Mr. Justice Cothran in his able opinion, favoring a rehearing of this cause, still I cannot agree with the disposition he would make of the cause. As I see it, there is but one question in the whole case to be decided. If Barron's firm was the agent of the plaintiff for the purpose of receiving and receipting for principal payments on the mortgage debt, and if that fact was shown by competent testimony, then the defendants are entitled to credit for such payments on the principal as they made. If Barron or his firm did not have such authority, then it follows the defendants are not entitled to the credits. Barron being dead, it is easy, of course, for his former clients to repudiate his agency. It is absolutely necessary for those who have suffered, or may suffer, because of his acts, or because of the conduct of his clients, to resort to circumstantial evidence to establish the agency of Barron. In my opinion, there was sufficient evidence in the cause to convince the Circuit Judge that Barron, or his firm, was the agent of the plaintiff. It appears to me further that, in his finding of fact, the Circuit Judge has been able to mete out substantial justice. I do not mean by the position I take in this particular cause that I am expressing an opinion as to the rights of others who may hereafter come to this Court because of the "back-wash" of the debacle of the Carolina Bond Mortgage Company. I am willing to be guided by *Page 278 the law as laid down by Mr. Justice Cothran, when the time comes to pass upon other causes, but I shall not forget the legal principle, which I believe is as strong as any stated by the learned justice, to wit: That one must be bound, and should be bound, by the acts and conduct of his duly authorized agent. I think, regardless of all presumptions, that, if it is established that a person had authority to collect principal on a mortgage debt for the holder of the mortgage, it matters not who had possession of the papers. The agency to collect the principal is the question. That agency is a question of fact, depending upon the proof in the case. The petition for a rehearing is denied. MESSRS. JUSTICES WATTS and STABLER concur.