Gibson v. Davenport

Welch, C. J. We think the district court was right. The money in controversy was not received by Mrs. Davenport, and she never authorized Cist to receive it for her. 'There is nothing to show that she reposed any confidence in Cist. He was selected by Gibson and Young, and not by her. They trusted to his honesty to report truly upon titles. Through their agents, McBurney & Co., they trusted him to prepare the papers, and to act for and represent them at their execution. They trusted him with the whole sum loaned, and with the mortgage to be recorded. It is but fair to presume that they trusted him to apply this money as had been agreed upon by the parties, by paying .go much of it to the attorneys of Stone as would satisfy his mortgage, and paying the balance, less his fees, to Mrs. Davenport, or to E. as her attorney. It can hardly be believed that McBurney & Co. would have consented to pay the whole sum over to Mrs. Davenport, and trust to her or to her attorney to make the proper application of it, or that they supposed they were so consenting when they paid the money to Cist, drawing the cheek in his own name, and ' apparently leaving it entirely to him to ascertain the amount payable on the mortgage, and the amount to be received by Mrs. Davenpoi-t. I think it is fairly to be inferred from the evidence, that MeBurney & Co. supposed, .at the time Cist brought them the certificate of title, that he had already applied so much of the money as was necessary to the discharge of the Stone mortgage. They knew ■of the existence of that mortgage, and that they would violate their instructions if they made the loan without its cancellation, and with this knowledge they accepted from Cist, after they had given him the check, his certificate that the property was “ now unincumbered.” Under such •circumstances, no presumption of authority on the part of Cist to receieve the money, as agent for Mrs. Davenport, [314] can arise from the mere fact .that he was entrusted with the-notes and mortgage. As well might it be said that her delivery of the same notes and mortgage to McBurney & Co. would have made them her agents to receive the money from Gibson and Young. The same may be said of the-fact that Mrs. Davenport was to pay the charges of Cist,, for by the terms of the loan she was also to pay the commission of McBurney & Co. Both facts are equally reconcilable with the supposition of Cist being the agent of either party. We think both parties regarded him, in this-transaction, as the agent of the lenders, and not of the-borrower, and that the former, and not the latter, should bear the loss occasioned by his unfaithfulness. Motion overruled.