Burnham v. Wilson ( 1911 )

Sheldon, J.

There was ample evidence that Fisher was authorized by the defendants to receive payments of interest upon the mortgage note here in question, and that is not now in dispute. But we are unable to find in the evidence any sufficient support for the claim that Fisher had authority to receive payment of the principal sum due. The judge at the hearing was unable to find such authority, although he found that Simpson, when he paid the principal sum to Fisher, “ believed and had reason to believe that Fisher had authority to receive payment of the principal as well as the interest,” that is, that Fisher had been held out to Simpson by the defendants as having such authority, so that Simpson was justified by their conduct in believing that such was the fact. The fundamental question in the case is whether this finding was justified.

Neither the note nor the mortgage was in Fisher’s possession. That he had been given authority to collect and receive the interest upon an overdue mortgage note would not without more tend to indicate that he was authorized to receive payment of the principal sum. Accordingly this was not of itself such conduct on the part of the defendants as would justify Simpson in believing that Fisher had the additional authority. Biggerstaff v. Marston, 161 Mass. 101, 104. Murphy v. Barnard, 162 Mass. 72, 77, et seq. This doctrine has been sustained in other jurisdictions in a great number of decisions which have been collected by the industry of the defendants’ counsel, to which it is not necessary now to refer.

The testimony that Fisher had collected an instalment of the principal due upon another note held by one of the defendants and a third party had no bearing. It was not known to Simpson, and could not have influenced his mind at all. He could not justify his belief by reason of a fact of which he was ignorant.

• In Fitzgerald v. Beckwith, 182 Mass. 177, the mortgagee had authorized his agent to receive payments of both principal and interest, and set up only a subsequent limitation of this authority, of which no notice had been given to the .mortgagor. In Boyle v. Corey, 170 Mass. 337, the mortgagee had known of previous payments of principal made to her agent and indorsed upon the note without any objection from her. Neither of these cases is applicable here.

Fisher was in no sense the general agent of either of the defendants, nor had he been held out as such by either of them; and it was not necessary to bring home to Simpson notice of any limitation of Fisher’s authority.

The testimony of Mrs. Eastman was admitted de bene esse, and was finally excluded. It cannot now be considered. It was incompetent as being a private conversation between husband and wife.^* This is not now disputed.

It is not worth while to go further into detail. We have been all over the evidence, and have weighed with care the suggestions made by the plaintiff’s counsel in argument. We find no evidence to justify a finding that either of the defendants held out Fisher as having a general agency about this note and mortgage, or a particular authority to receive payment of the principal. The defendant’s exception to the refusal of the judge to give their first request for rulings must be sustained.

¡So ordered.

* It appeared in evidence that the witness’s husband had died before the suit was brought.