Corning v. Calvert

By the Court, Daly, First Judge. There was no conflict of testimony in this case. The defendant applied for a loan of four thousand dollars upon one house, and three thousand dollars upon the other. Britton, to whom he applied, got Beet to negotiate the loan. Beet, having found a person who had seven thousand dollars to loan, but wanted to loan it on one mortgage, called upon Calvert, the defendant, and Calvert told Mm that “ they could take their choice, and put it in one or two mortgages, as they wished.” Beet then saw Mr. Wight, the attorney of tho person who had the money, and Wight decided to loan it." Wight testified that the parties had agreed upon the loan; that the party he represented agreed to make it. A particular description of the property was then furnished to Wight. He investigated the title and completed it; but the matter fell through because the defendant’s brother would.not sign the bond unless the loan was in two mortgages. In consequence of which the defendant said there must be separate mortgages, and Turner, who had the money, would not loan it except upon one bond and mortgage. In all this there was no conflict in the testimony. When the defendant told Wight or Turner that there must be separate mortgages, he also said that that was his application. But his declaration to that effect did not countervail or amount to a denial of his previous statement to Feet that it might be in one or 58 two mortgages, as the parties wished. Or, if it might be regarded as evidence conflicting with the testimony of Peet, the question of fact in conflict upon the evidence, was for the justice, and his finding upon that point cannot be reviewed upon appeal. As the case stands upon the evidence, the defendant authorized Peet, who was acting as the agent of Britton, to procure the loan, giving one bond and mortgage. If he had no authority to consent that the loan might be embraced in one mortgage, he should not have directed Peet to procure it upon such terms. It is said that Britton was not present at this interview with the defendant. But Peet was his agent; and specific instructions as to the terms, made to the agent, was the same as if made to Brit-ton. The application given in evidence by the defendant, which was in writing, did not specify whether the loan was to be secured by one or two mortgages; but merely that three thousand dollars was wanted on one house, and four on the other. The proposition to include both sums in one mortgage, therefore, was not varying the terms of the application. It simply made them more specific. Peet’s name is attached to the application, showing that the defendant negotiated or treated with him; and if Peet was acting as the agent of another, it does not lie with the defendant to interpose that objection. The service was rendered. A person was found ready and willing to make the loan upon the proposed terms. The commission was earned, and whether Peet was acting as the agent of Britton or for himself, is immaterial as respects the rights of the defendant. lie swears he was Britton’s agent, and is thereby estopped from setting up any claim himself. Britton called upon the defendant after Peet’s interview, thus ratifying and adopting Peet’s acts; and the defendant told Brit-ton, when he called, that he would pay him one per cent. He then recognized Britton, and not Poet, as the principal in the' business; and Britton, and his agent Peet, having done what they engaged to do, that is, procured a person ready and willing to loan upon the terms proposed by the defendant, the commission was earned, and the judgment is right. Judgment affirmed.