Roehl v. Volckmann

Winslow, J. This is a case of hardship, because, whichever, way the judgment goes, a party innocent of any evil design must suffer. The theory of the complaint is that Volckmcmn sold to Peters an apparently valid note and mortgage, and warranted the amount due thereon, and that he had good title; and that, it being now shown that the supposed note and mortgage are worthless, Peters or his successors in interest may recover the consideration paid. If the plaintiffs are correct in the position that Volckmcmn sold the securities to Peters, there can be no question as to the conclusion, because, even in the absence of the express warranty contained in the assignment, there would be an implied warranty of genuineness. Giffert v. West, 33 Wis. 617. On the other hand, Volckmcmn?s claim is that he had no business transaction with Peters, but that Peters bought the securities of Rambusch, while he (Volalcmcmn) simply sent the securities to Rambusch upon the representation that they were to be paid, and supposed that the assignment was simply to be used as a means of perfecting a discharge of the mortgage by some person when it was paid. We think the plaintiffs’ theory of the true legal effect of the transaction must be held to be correct. While it is true that Volckmann had no personal dealings with Peters, and in fact was totally unac [488] quainted with him, and supposed that the mortgage was to he paid, still when he received from Rambusch, on the 31st of October, an assignment in due form of the securities to Peters, instead of a discharge, we think he was clearly notified that it was 'or might be Rambusch’s intention to sell them to another. The evidence shows that Rambusch had been for years the agent of Volokmami for the investment, collection, and reinvestment of moneys. Now, if no fact appeared except that Volchmmm, sent to Rambusch, his general loaning agent, the note, mortgage, and assignment, it would hardly be contended but that Volohmami thereby authorized Rambusch to negotiate and sell the mortgage in accordance with the terms of the assignment. Certainly, in the absence of any instructions to the contrary, such would be the implied authority of Rambusch. There were no instructions to the contrary in the present case, and the sole ground of escape from the conclusion is that Rambusch had previously notified Volchncmn that they were to be paid. We do not think this fact can have any such effect as is claimed for it. If Volclvmcmn desired to limit the power of his general agent ’simply to receiving payment of the mortgage, he could easily do so by sending him a simple discharge; but when he received the assignment instead of a discharge he was charged with notice that a sale was or might be contemplated, instead of a payment; and when he executed the same, and placed it in the hands of Rambusch, he necessarily clothed him with the power to do the act which an assignment usually and regularly contemplates is to be done, namely, to sell the security, and deliver the assignment to carry such sale into effect. We do not regard the fact that Rambusch forged an agreement purporting to extend the time of payment upon the note before sending it to Peters as of any moment. If our reasoning is correct, the fact still remains that Vololcmarm authorized Rambusch to negotiate and sell the note and [489] mortgage, and that the plaintiffs’ loss resulted, not because the agreement of extension was forged, but because the note- and mortgage, whose genuineness were warranted by the defendant, were forged. Had they been genuine, the plaintiffs would have realized all that was paid for them, whether the agreement of extension was forged or genuine. Error is assigned because of the exclusion of the letters written by Rambusch to Vololcmami prior to the' assignment, but, as the letters are all preserved and printed in the record, and we have considered the facts shown by them in our discussion of the case, and are still of the opinion that the verdict was rightly directed, it becomes unnecessary to-consider the question of their admissibility. By the Court.— Judgment affirmed.