Long Bros. v. Jennings , 137 Ala. 190 ( 1902 )

TYSON, J.

This is an action brought by plaintiff, a mortgagor, against the defendants, mortgagees, to recover the statutory penalty of two hundred dollars.for failuró to' enter on the margin of the record of the mortgage,' a partial payment, — § 1065 of ’Code-; Acts, 1898-99, p. 26. The evidence without conflict, establishes the execution of the mortgage, its recordation,, the amount of the partial payment that was made -by' plaintiff on the mortgage, a written request; by' him upon defendants, to enter the same upon the margin of the record and a delivery of that request, in the absence of their business manager., to' one R. W( Long, who,wqs an agent of defendants, more'.than, thirty days before' the institution of this suit. The only question, presented by the record of any moment, is whether the notice that R. W. Long received by the delivery of the written request to him, was sufficient notice to the defendants of that request and imposed upon them the, duty required by the statute of entering the partial payment on the margin of the record.

In Loeb v. Huddleston, 105 Ala. 257, it is said: “The statute does not prescribe, the manner in which the request must be brought to the knowledge of the mortgagee.” Indeed, tire opinion in that case i nferentially recognizes that the request may be delivered to an agent' and thereby bind the principal. Of course, the nature and character of the agency must be taken into consideration in determining the question. If knowledge of the request could only be fixed on a mortgagee by a delivery of the request to him or it personally, excluding for that purpose a delivery to an agent, the statute would oftentimes be defeated. For instance, when a mortgage is executed to' a Corporation, the only method by which notice could be given to it to enter partial payments or. satisfaction upon the margin of the record, would be by a, delivery of the request to an agent. And, if delivered to a general agent of the corporation, can it be dqubted, that this would be notice to the corporation? We think not. So here, .all the evidence showing without controversy that the plaintiff made the trade for the advancement of the goods with R. W. Long, who drew up the mortgage to secure those advances, and had all his dealings with R. W. Long with reference to the talcing of said mortgage, and also that he made the payment to R. W." Long upon said mortgage, instructing him to credit said payment on the mortgage debt, when taken in connection with the further fact that R. W. Long was the credit man of the firm of Long Brothers, and in the absence of the business manager of that firm he conducted their business, it must be held that R. W. Long was the general manager of the defendant partnership, and that notice to him was notice to the partnership'. To see that R. W. Long was a general agent to defendants, we have only to apply the definition of that term as found in Gibson v. Snow Hardware Co., 94 Ala. 352, to the facts as disclosed by his own testimony. Being a general agent, we do- not doubt that he had authority to have entered the payment made to him by plaintiff on the mortgage debt on the margin of the record, it is true he does sny that he had no- such authority, but this is clearly an erroneous conclusion which he deduces from the facts.

. There was clearly no- error in admitting the mortgage in evidence.

•Affirmed.