Miles v. Ogden

Cassoday, J. One ground urged for reversal is, that no part of the $1,200 should have been applied as payment upon the note and mortgage, but should have been applied by the court as R. N. Roberts had credited it; that is, $200 on the bond given by Walsh & Ogden, and $1,0.00 to the credit of Ogden’s individual account at the store, notwithstanding he was only indebted thereon at the time in the sum of $357.37. But the court found as a matter of fact that Ogden paid the whole $1,200 to be applied upon his individual indebtedness, and to that finding there is no exception, further than as to the time when the payment was made. We are not, however, disposed to sustain the exception, and hence that finding must stand as though no exception had been taken to it. This being so, R. N. Roberts was obliged to apply the whole payment upon Ogden’s individual indebtedness then existing. As there was no specific direction to apply it all upon the note and -mortgage, he had the legal right to apply enough of it to Ogden’s [576] individual store account to cancel the same; but the balance he was obliged to apply then upon the only other existing indebtedness which he then held against Ogden personally,to wit, the note and mortgage in question. We are not aware of any principle of law which would authorize R. N. Roberts, after receiving the $1,200 with such directions, to apply any portion of it on the bond given by Walsh & Ogden, or to withhold any portion of it to be applied upon a debt thereafter to be contracted — an account thereafter to be traded out at the store. With such directions, he was bound to apply it to a debt or debts existing at the time the payment was made, and had no authority to hold it as security for a debt thereafter to be incurred. The authority of E. N. Eoberts to bind the plaintiff, by accepting the $1,000 mortgage in lieu of cash, is not questioned. In fact, the finding is that Ogden paid him $1,200, without specifying that $1,000 of it was by way of mortgage; and no exception having been taken to the finding in this regard, it must stand as a verity. The exceptions raise the question of the authority of E. N. Eoberts to bind the plaintiff by receiving a deed of certain lands running to her, and allowing therefor $350 as a payment on the note and mortgage. But if the plaintiff desired to repudiate the agency of her brother in that regard,. she should have reconveyed the property as soon as it carne to her knowledge. Certainly she cannot retain the title so conveyed to her, and at the same time repudiate the agency by which she acquired it. Ballston Spa Bank v. Marine Bank, 16 Wis., 120; Paine v. Wilcox, 16 Wis., 202; Wellauer v. Fellows, 48 Wis., 105; Elwell v. Chamberlain, 31 N. Y., 619. The answer alleges certain payments, but nothing is set up by way of counterclaim or set-off. The court allowed as payment on the note and mortgage, under date of January 17, 1879, $433.43, for certain services rendered by Ogden as attorney under an agreement with R. N. Roberts. The plaintiff denies the authority of R. N. Roberts to cancel any portion of [577] ber note and mortgage by way of paying for services rendered to her brother, or for her father’s estate; and a reversal is urged because such allowance was made. Notwithstanding the entire business seems to have been under the control and management of R. N. Roberts, yet we are inclined to think that plaintiff cannot be bound by such deduction or application without her assent, expressed or implied, and we fail to find anything in the record indicating that she gave such assent. This abundantly appeal's from the authorities cited by counsel for the appellant. In so far, however, as Ogden rendered services as attorney in suits or business of the plaintiff personally, she would probably be bound to pay him, notwithstanding the business was transacted at the instance of her brother as her agent. But even services so rendered for the plaintiff cannot be treated as payments without an express agreement to that effect, made by the plaintiff or with her authority. "With this view of the case, we think the plaintiff is entitled to recover $980.66, with interest thereon at ten per cent, from May 1,1878, but without prejudice to any claim the defendant may have for services and disbursements as attorney for the plaintiff. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment of foreclosure and sale in favor of the plaintiff in accordance with this opinion.