Englert v. White

Bobinson, J. The note in suit was made on the third day of March, 1888, by the defendants, Julia White and W. H. White, for the sum of nine hundred dollars with interest, and was payable one year after its date to the plaintiff, or order, at the office of Theodore Gruelich, in Burlington, Iowa. The payment of interest to the third day of March, 1892, is acknowledged by the plaintiff, and nothing more is indorsed on 98 the note. The defendants allege that all of it has been paid excepting the sum of one hundred and fifty dollars, payment of which they tender. The decree of the district court gave to the plaintiff the amount claimed by her, and provided for the foreclosure of the mortgage. At the time the note was given, Theodore Guelich was engaged in the law, real estate, loan, and collection business. The defendants applied to him for a loan of money, and he furnished the desired amount, and took therefor the note and mortgage in suit. The plaintiff was unknown to the defendants in the transaction, excepting as her name appeared in the instruments signed. Her money was intrusted to her brother, G. H. Biklen, who acted as her agent; and when he had money belonging to her he took it to Guelich for investment. The money furnished to the defendants was obtained by Guelich of Bicklen. The note, when taken, was delivered to Bicklen, and by him kept. Guelich was not authorized to collect anything on the note, but, notwithstanding that fact, he notified the defendants when the note would be due, collected of them and receipted for the interest, told them he could extend the time for paying the note, and an extension was procured through him. In October, 1890, the defendants paid to him six hundred and ninety-eight dollars to apply on the note. Of that sum forty-eight dollars were for interest. In July, 1892, they paid him one hundred and seven dollars, of which seven dollars were for interest due to that time. It does not appear that any of this money, except enough to pay the interest due to March 3, 1892, was ever accounted for to the plaintiff or her brother. Guelich died in February, 1893, and in March the plaintiff demanded of the defendants the payment of nine hundred dollars on the note. They contend that they never saw the plaintiff, and do not know her; that they supposed they borrowed the money of Guelich, 99 and did not know until after his death that Biklen had the note. They insist that Gruelich was the agent of plaintiff in making the loan and in receiving the money which they paid him to apply on it. The facts upon which they rely to establish that agency are: First. That the note was ■ payable at the office of Ouelich. Second. He, alone, demanded payment of it. Third. His book of account shows that he was receiving money on her account from various persons, and paying it to her, and on loans made for her. The defendants are chargeable with knowledge of the fact that the note was payable to the plaintiff. There was no reason for their not knowing it. Gruelich read the note to them when it was signed, and it is not charged that he attempted to deceive them, nor that they could not read. They do not remember whether they knew at that time to whom the note was made payable. They paid GJ-uelich twelve dollars to procure the loan, and were told by him that, he could arrange for an extension of time, as the lady to whom the money belonged had no use for it. The fact that the loan was procured through Gruelich did not authorize him to collect the money in the absence of the note properly indorsed, or other sufficient authority. It was said in Draper v. Rice, 56 Iowa, 115, 7 N. W. Rep. 524, and 8 N. W. Rep. 797, that “authority to sell a piece of property as agent, and take a note for it in the name of the principal, would not, of itself, include the authority to receive payment.’7 The same rule must be applied to the making of loans. Mechem, Ag., sections 373, 817. Nor did the fact that the note was made payable at the office of Gruelich authorize payment to him. He was never known as a banker, and hip business did not justify the presumption that he was expected to receive the money. Callanan v. Williams, 71 Iowa, 363, 32 N. W. Rep. 383. The note in suit was made payable to the plaintiff, or her order, and has been in the posses 100 sion of her agent continuously since that time. As Gruelich had neither actual nor apparent authority to collect the note, money received by him, and not accounted for to the plaintiff, did not operate as a payment. It appears that he kept an account with the plaintiff which showed continuous dealings with her, and the collection of money ,on her account, and it is insisted that he was acting as her financial agent long before the loan in question was made; that she must have known that he was acting for her in collecting money of the defendants; and that ■ they have been misled by the course pursued by her in connection with the note. It is not shown that either the plaintiff or her agent had any knowledge of the account kept by Gruelich, nor that it was claimed that he was acting as her agent. An estoppel is not pleaded by the defendants. Their answer denies knowledge of the ownership of the note, denies that they are indebted on it to an amount exceeding one hundred and fifty dollars, alleges that they did not know that Gruelich was not the owner of the note until after his death, and that he was the holder of the note, and in possession of it to the time of his- death. As we have seen, the defenses pleaded in the answer are not sustained by the evidence. The decree of the district court is affirmed. |