Thompson v. Keys

DUNKLIN, J. L. G. Keys executed two promissory notes, each, for the principal sum of $100, in part consideration for a tract of land purchased by him from G. M. Leverett, and upon which land a vendor’s lien was retained to secure payment of the notes. Thereafter the land was sold by Keys to Jno. T. Carter; by Carter to Oris Hardwick; by Oris Hardwick to E. R. Hardwick; by E. R. Hardwick to W. W. Watson; by W. W. Watson to W. T. Brown; and by W. T. Brown to T. B. Brite. Each grantee in these several deeds of conveyance, except W. T. Brown and T. B. Brite, assumed payment of the two promissory notes mentioned above, in part consideration for the conveyance to him, but the conveyances to Brown and Brite both recited payment of consideration in full. One of the notes was paid by Watson after he purchased the land. W. R. Thompson, claiming to be the as-signee and legal owner of the other note, instituted this suit to collect it and to foreclose the vendor’s lien upon the land. Keys, Oris Hardwick, Watson, and Brite were made defendants. Brite interpleaded Brown, his vendor, and prayed judgment over against him on his warranty of title, in the event a foreclosure was decreed. He further alleged in his answer to plaintiff’s suit that the note had been paid, but, if that plea should not be sustained by proof, nevertheless a foreclosure could not be decreed, for the reason that John T. Carter assured Brown, before the latter purchased the land from Watson, that the note in controversy had been paid off and discharged; that this assurance was given by Garter to Brown and Watson before the latter sold the land to Brown, and after Carter had been told that Brown was then negotiating for the purchase of the land free of incumbrance; that Brown relied upon said statements so made by Garter, and was induced thereby to purchase the property and to pay therefor $600 in cash; that said representations so made to Brown and Watson by Garter were repeated by Brown to Brite when the latter purchased the property, and Brite was induced thereby to purchase it and to pay therefor $550 in cash; that at the time Garter made those representations he was the owner of the note in controversy; that, if the note was then owned by plaintiff and not by Garter, then Carter was the duly authorized agent of plaintiff for the collection of the note, and, by reason of the representations so made by Garter and the fact that Brown was thereby induced to purchase the property, and Brite was later induced to purchase from Brown, plaintiff is now estopped from claiming a lien upon the property. This plea of estoppel was adopted by Brown. Brite and Brown further prayed that Garter be made a party defendant and for judgment against him, by reason of the representations alleged to have been made by him, in the event of a foreclosure of the lien claimed by plaintiff. Keys likewise prayed for judgment over against Garter, his vendee, for any sum that [1197] might be adjudged against Mm (Keys); tMs plea qver being based upon Carter’s assumption of the payment of tbe note as a part of the consideration for the sale to him by Keys. Watson pleaded payment of the note. Oris Hardwick filed no answer. . Carter filed answers to the pleas over against him by Ms codefendants. The case was tried by the court without the aid of a jury, and a judgment was rendered in favor of plaintiff against Keys, Oris Hardwick, and Watson for the amount due on the note, but denying a foreclosure of the lien claimed upon the land. From that portion of the judgment refusing a foreclosure, plaintiff has appealed. It is undisputed that the vendor’s lien to secure the payment of the note was duly reserved in the deed from Leverett to Keys and in the note itself; and no error has been assigned by appellees to the finding by the court, wMch is necessarily included in the personal judgment in favor of plaintiff against Keys, Hardwick, and Watson, and also supported by the evidence, that plaintiff was the legal owner and holder of the note. While the trial judge filed no conclusions of fact and" law, it is quite evident that he sustained the plea of estoppel urged by Brite and Brown, and for that reason denied a foreclosure of the lien. The evidence was sufficient to sustain a finding that Carter made the representations alleged, and that Brown and Brite were induced thereby to purchase and pay for the land, and that at the time Carter made the representations he was in possession of the note as agent for plaintiff with authority to collect it. There was no evidence tending to show any specific authority from plaintiff to the agent to make such representations, but appellees insist that the representations were within the apparent scope of Carter’s general authority to collect the note, and therefore, were binding upon the plaintiff. We are of the opinion that this contention is unsound, and that the plea of estoppel should have been overruled. Appellees invoke the general rule that the principal is bound by the declarations, statements, and admissions of the agent made while acting for his principal and within the apparent scope of his authority; and, among other authorities announcing that doctrine, cite Meehem on Agency, § 714. But the same author further says: “An agent authorized merely to collect a demand or to receive payment of a debt, cannot bind Ms principal by any arrangement short of an actual collection and receipt of the money. He cannot, therefore, take in payment the note of the debtor payable either to himself or to his principal; or the note or bond of himself, or of a third person; or a draft or order on a stranger, or horses, wheat, merchandise or other property of any kind; nor can he set off a claim due from himself; or take property for his own use in payment. * * * ” (Section 375.) “It follows, as a corollary of the rule above referred to, that an agent authorized merely to collect or receive payment, has no implied power to release the debt, in whole or in part, or to compromise the claim without payment; nor can he discharge the debtor and assume the debt himself.” (Section 376.) See, also, 31 Cyc. 1392-1394; Belton Compress Co. v. Belton Brick Mfg. Co., 64 Tex. 337. In the case of Wm. Cameron & Co. v. Blackwell, 53 Tex. Civ. App. 414, 115 S. W. 856, this court quoted with approval the following language used by the Supreme Court of North Dakota in Corey v. Hunter, 10 N. D. 5, 84 N. W. 570: “Apparent authority is that authority which an agent appears to have from that which he actually does have and not from that which he may pretend to have, or _ from his actions on occasions which are unknown to and unratified by his principal." And in Cameron v. Blackwell, supra, this court, speaking through Chief Justice Conner further held: “One dealing with an agent is bound to a knowledge of the agent’s authority, and only such authority may be implied as is reasonably necessary and proper to carry into effect the main power conferred.” The same rule is announced in Green v. Hugo, 81 Tex. 452, 17 S. W. 79, 26 Am. St. Rep. 824; H. & T. C. Ry. Co. v. Hill, 63 Tex. 381, 51 Am. Rep. 642; G., H. & S. A. Ry. Co. v. Allen, 42 Tex. Civ. App. 576, 94 S. W. 417; 31 Cyc. 1322. Although none of the deeds mentioned above were recorded, except the deed from Brown to Brite, nevertheless Brown and Brite, claiming title through the unrecorded deeds, were chargeable in law with notice of the vendor’s lien wMch plaintiff sought to foreclose and which was retained in the deed from Leverett to Keys. Gilbough v. Runge, 99 Tex. 539, 91 S. W. 566, 122 Am. St. Rep. 659. For the reason stated, the judgment of the trial court denying the foreclosure of lien sought by plaintiff is reversed, and judgment •is here rendered granting a foreclosure of such lien against appellees L. G. Keys, Oris Hardwick, W. W. Watson, and T. B. Brite for the amount of personal judgment rendered in plaintiff’s favor, those defendants being the only defendants against whom plaintiff prayed for a foreclosure. In all other respects, the judgment rendered by the trial court is undisturbed. In tMs connection we deem it proper to note that a judgment was also rendered in favor of the plaintiff against E. R. Hard-wick, who was not a party to the suit and against whom plaintiff asked no relief, and in favor of Keys over against several of the defendants, including E. R. Hardwick, against whom Keys prayed for no relief; also in favor of other defendants over against some of their codefendants without any pleas to support the same, but no error has been [1198] assigned to any of sueb judgments, and the question of their validity vel non therefore is not before us. •