DAUEL v. ROSE

DAUEL v. ROSE
1926 OK 904
251 P. 1000
123 Okla. 51
Case Number: 17379
Decided: 11/16/1926
Supreme Court of Oklahoma

DAUEL
v.
ROSE et al.

Syllabus

¶0 Principal and Agent--When Question of Law--Direction of Verdict. Where the evidence relied upon to constitute agency consists of a written instrument which, by its terms, clearly created the relation, the question is one of law for the court, and it is not error to direct a verdict accordingly.

Tom D. McKeown and C. F. Green, for plaintiff in error.
J. F. McKeel and Robt. S. Kerr, for defendants in error.

ESTES, C.

¶1 Parties appear in the same order as in the trial court. Plaintiff sued J. E. Rose and wife for judgment for $ 1,570 on a promissory note and for judgment of foreclosure on certain real estate against the Roses and numerous other defendants. Defendants pleaded payment. From a judgment on directed verdict for defendants, plaintiff appeals. On August 5, 1919, J. E. Rose and wife executed a mortgage on their farm to secure said note that day given to the Conservative Loan Company, due in 1929. On September 4, 1919, said note and mortgage were assigned to plaintiff, Dauel, but the assignment was not recorded until December 20, 1923. The land changed hands and was owned by another Rose, defendant herein, who procured a larger loan upon the land from the Federal Land Bank of Wichita, Kan. On April 28, 1923 the Federal Land Bank for Rose, the owner of the land, remitted $ 1,570 to the Conservative Loan Company to take up said first mortgage so assigned to plaintiff. On July 15, 1923, the Conservative Loan Company sent its check for $ 1,590 to plaintiff, Dauel, to pay the note and mortgage so assigned to him, which check was accepted by plaintiff, but not paid for insufficiency of funds, the loan company then being insolvent. In the meantime the Conservative Loan Company had changed its name to the Conservative Loan & Trust Company, the latter being the successor of the former company, but its ownership and operation being the same. On July 3, 1925, plaintiff began this action to foreclose. It is not contended that any of defendants had actual notice that plaintiff was the owner of the note and mortgage sued upon. No constructive notice thereof was imparted because the assignment to the plaintiff had not been recorded at the time the bank paid the loan company. The question for determination is one of agency--whether the Conservative Loan Company was the agent of plaintiff in receiving said payment from the land bank for Rose.

"Payment of a negotiable note before maturity to any one other than the holder thereof, or his duly authorized agent to receive such payment, is at the risk of the payer.