Becker v. Bluemel

The appellant assails the finding of the ■court to the effect that the plaintiff’s not© and mortgage were not paid by the acceptance of the new note and mortgage given by Haase and Grube and delivered to the Milbrath Company. It is beyond question that the Milbrath Company, .•as plaintiff’s agent for the collection of the note and mortgage, was restricted to receiving payment of them in money. They had no authority to receive payment in any other way. The claim that the course of dealing between them and Elizabeth Becker, before they undertook the collection of this note, shows that they had full power to deal with defendant’s note and mortgage as owners, is not sustained.. It is apparent that ■their authority to deal with these securities was limited to •that of -collection agents, under which they could receive *496payment of them only in money. We must' then ascertain whether the finding that nothing was in fact paid to them as such agents, except the sum of $50 paid by appellant on May 25, 1905, is sustained by the evidence.

The contention is that the Milbrath Company had collected $800 in money for appellant in the month of March and held it for her to reloan it, and that the books of accounts show that they, as agents of Mrs. Bluemel, applied this sum and the $50 delivered to them by her to the payment of plaintiff’s note. While the book entries which are relied on tend to show such a transaction, yet the facts established by the other evidence in the case are that the Milbrath Company, at the time of surrendering plaintiff’s note and mortgage to Lindemnann on May 25, 1905, accepted the Haase and Grube note and mortgage as payment of them, and that the officers of this company did not at any time thereafter pay the $800 of appellant’s money in consideration of transferring the Haase and Grube securities to her. The Milbrath Company did not have on hand the $800 which they had collected for appellant in the preceding March, and they could not-, therefore, at the time of the alleged payment of plaintiff’s note and mortgage, apply this money in payment of them as claimed upon their books of accounts. Under the facts and circumstances these are mere colorable entries and amount to a bookkeeping transfer of appellant’s credit to Elizabeth Becker. This, of course, did not operate as a payment of plaintiff’s note and mortgage. The court’s conclusion that the Milbrath Company was insolvent at the time of these transactions is fully warranted by the evidence. Large sums intrusted to the company to be loaned for its clients had been converted by the officers to the use of the company, and it was unable to pay them, and soon thereafter was forced into bankruptcy. The plaintiff’s mortgage was recorded long before appellant’s mortgage was made and recorded, and remained unsatisfied of record up to the time this action was commenced. There is no proof show*497ing that appellant bad been informed that this mortgage was discharged. Her agents, the officers of the Milbratb Company, bad actual notice that it was a subsisting mortgage and bad not in fact been paid at tbe time they assigned the Haase and Grube securities to her. It is obvious from these facts that plaintiff is entitled to insist upon his mortgage security and to enforce it in this action.

Exception is urged to the point, found by the court, that the assignment of the Haase and Grube mortgage to appellant was without consideration and therefore void. Fiona the foregoing facts it is clear that the assignment was based on the transaction through which they sought to effect payment of plaintiff’s note by the application of appellant’s credit for the $800 of her money they had collected. Since the accomplishment of that object failed for the reasons above stated, it must necessarily follow that Haase and Grube received no consideration for the note and mortgage they made in favor of Mary Kurth and which they delivered to Lindenmann in payment of the note and mortgage in question. Nor was there consideration for its subsequent assignment by the Mil-brath Company to appellant. Upon these facts the court declared the note and mortgage void in appellant’s hands.

It is urged that the doctrine of estoppel as applied in Marling v. Nommensen, 127 Wis. 363, 106 N. W. 844, and the other cases cited, has application to the plaintiff in the instant case. We discover no similarity in the facts of this case to the facts and circumstances there presented, and hence no basis for the application of the rule. There is no reversible error in the case.

By the Court. — Judgment affirmed.