Faulkner v. Simms

Day, C. The Sullivan Savings Institution brought this suit in the district court for Harlan county against Benjamin Simms et al., to foreclose a real estate mortgage upon certain lands in Harlan county. Subsequently Francis C. Faulkner and Henry G. Sanders, assignees of the Sullivan Savings Institution, were substituted as parties plaintiffs. It appears that on July 1, 1885, Benjamin M. Simms negotiated a loan of $800 through one C. 0. Burr, of Lincoln, a mortgage broker, which was secured by a mortgage upon certain real, estate situated in Harlan county. The note and mortgage were made payable to John L. Farwell, were diie January 1, 1891, and payable at the Clairmont National Bank, Clairmont, New Hampshire. On December 8, 1886, Simms transferred to Frank TV. Reisenburg a part of the mortgaged premises, to wit, the S. TV. -1- of the N. W. i, and the N. TV. i of the S. W. I section 30, town 3, range 17; and on February 7,1887, he transferred to Elliott Lowe the remainder of the mortgaged premises, to wit, the E; £ of the N. E. ¿ of section 25, toAvn 3, range 18. The defendant Reisenburg answered that the part of the mortgaged premises purchased by him was subject to a lien of $800 of the $800 mortgage sought to he foreclosed, [297] and that lie had paid to the plaintiff on February 12, 1892, the sum of $300, together with the accumulated interest thereon, and prayed that the mortgage lien upon the premises purchased by him be canceled. The defendant Lowe answered that he had paid to plaintiff on February 11, 1892, the sum of $573, together with the accumulated interest thereon in full of the amount of the mortgage which was a lieu upon the part of the premises purchased by him, and also prayed that the mortgage lien upon his part of the premises be canceled. The trial resulted in a finding and decree in favor of the defendants, from which the plaintiffs appeal. The record discloses that a few days after the execution and delivery of the note and mortgage, Farwell indorsed the note without recourse and transferred the same to the Sullivan Savings Institution, of which company he was treasurer. There is no dispute in the evidence but that Lowe paid to Burr on February 11, 1892, the sum of $573, and that it was received by Burr in satisfaction of the mortgage lien upon the portion of the land owned by Lowe. This Sum, however, was not remitted by Burr to the plaintiff, and the fact of its collection was not ascertained until the fall of 1894. There was not sufficient testimony to establish that Reisenburg had paid the sum of $300 and interest, as alleged in his answer. Burr testified that the whole debt was paid February 12, 1892, by Elliott Lowe, but it seems quite clear from the entire record that his reference to the payment related to the sum of $573 paid by Lowe on February 11, 1892. The real question presented by the record is whether Burr, in receiving this money from Lowe, was the agent of the plaintiff. The question of agency is always one of fact, to be determined from the evidence in the case. The evidence disclosed that Burr had collected the interest coupons on the note as the same became due, and had remitted the interest to the holder, and also that between the plaintiff and Burr very extensive dealings had been car [298] ried on, running up, as one of the witnesses testified, to nearly $1,500,000, and also extending over a great many years. Burr seems to have had general authority to extend the payment of notes when, in his judgment, it seemed best that that course should be pursued, and also to commence suits of foreclosure when such proceedings seemed to be advisable. It also appeared that Burr had collected the interest and principal of many of these loans, and had reinvested money collected on some of them, and that plaintiff had acquiesced in his conduct in so doing; also that Burr had charged himself in his account with the plaintiff for the amount of money received, and that plaintiff’s attention had been directed to this fact in the fall of 1894. From the fact that plaintiff permitted Burr for a period of years to collect not only the interest on the loan in question, but the principal of other loans made by him for plaintiff, together Avith the fact that he Avas given general authority and discretion to reneAV loans or enforce their payment by foreclosure, are circumstances strongly tending to establish his agency. The facts of this case bring it Avithin the doctrine announced in Johnston v. Milwaukee & Wyoming Investment Co., 46 Neb. 480, in which it was ruled: “Where a principal has, by his voluntary act, placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform a particular act, and therefore deals Avith the agent, the principal is estopped as against such third person from denying the agent’s authority.” • The case at bar is also within the rule laid down in Thomson v. Shelton, 49 Neb. 644, where it is said: “Ostensible authority to act as agent may be conferred if the party to be,charged as principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to trust and act upon such apparent agency.” 1. Appeal: Conflicting Evidence: Review of Finding. In passing on •> findings of fact upon appeal, the reviewing court should go over all the evidence and reach its own conclusion thereon, giving such weight to the determination of the trial court as to credibility of witnesses and its finding on conflicting evidence as, under all the circumstances of the case, the nature of the evidence before the trial court, and that court’s special opportunities, if any, for reaching a correct solution, such finding may be entitled to. 2. Review of Finding Based on Oral Evidence. In ordinary cases, where the evidence is entirely oral, and the trial court may be presumed to have had a general local knowledge of the parties, the witnesses and the subjects of controversy, the finding of the trial court is often entitled to almost decisive weight. 3. Finding: Conflicting Obal Evidence. A finding on conflicting evidence in such cases will be adhered to unless clearly wrong; but, ■ if clearly wrong, it will be set aside, notwithstanding there may be some competent evidence in support thereof. Seymour v. Street, 5 Neb. 85, approved. 4. Dicta in Prior Opinions Explained and Qualified. Dicta in prior opinions of this court with respect to review of findings of fact explained and qualified. 5. Dicta Disapproved. The statements that the reviewing court will not “weigh conflicting evidence,” that it “will not review findings on conflicting evidence,” and that “findings on conflicting evidence are conclusive,” as announced obiter in several prior decisions, disapproved. We, therefore, recommend that the judgment of the lower court be reversed, with direction to enter a decree in favor of the plaintiff for ¡¡¡>300 and interest, in accordance with this opinion, and that the premises described in the opinion as belonging to Reisenburg should be first sold in satisfaction of the judgment. Hastings and Kirkpatrick, CO., concur. By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed, with direction to enter a decree in accordance with this opinion. Reversed.