Ellis v. Maurer ( 1900 )

Long, J.

The bill in this case was filed to foreclose a certain mortgage on real estate. The mortgage was given by defendant William Maurer to Joseph J. Ellis on December 19, 1884, and was duly recorded. The other defendants were made parties defendant as subsequent incumbrancers or purchasers.

Defendants, in their-answer to the bill, set up that at the time of the giving of the mortgage, and for a considerable time thereafter, one Myron H. French, of the village of West Branch, was associated with Joseph J. Ellis as a copartner in business; that French, acting for Ellis, attended to the making of the loan for which the mortgage was given; that the note accompanying the mortgage was made payable at the banking house of Ellis & French; that about July, 1886, the firm of Ellis & French was succeeded by M. H. French & Co., who continued the business formerly carried on by Ellis & French; that from that time forward all matters relating to the collection of principal and interest upon loans made by Ellis were intrusted to M. H. French, as agent for said Ellis, among which was the mortgage given by Maurer; that about the 1st of January, 1886, Maurer went to the banking house of French & Co. and paid interest on said note and mortgage, amounting to $22.50, to Mr. French, with the understanding that the same was to be indorsed upon the mortgage held by Ellis; that about the 1st day of January, 1887, defendant Maurer again went to the banking house of French & Co. and paid the interest and some of the principal on the note and mortgage, amounting to $190; that after such payment the land was conveyed to, defendant August Melcher; that on March 15, 1888, Melcher paid to French $6, as interest on said mortgage, and on March 5, 1890, he paid the balance remaining due on said mortgage, amounting to $75.15, with the agreement that this amount satisfied and fully paid the mortgage.

The case came on for hearing before Judge Sharpe, the testimony being taken in open court. It was the claim of complainant that French was not the agent of Ellis, authorized to receive the payments of principal on such mortgage. It appears that French failed in July, 1898, and that Ellis died before the time of filing this bill, which was filed by his executrix. The court below in an opinion sets up fully the claims of the parties. We are satisfied, from a careful examination of the record, that French had authority to receive the payments on this mortgage. The court below was of that opinion, ánd entered a decree dismissing complainant’s bill. It would profit no one to set out the testimony upon which we reach this conclusion. It is the same conclusion reached by the court below, who had an opportunity to see the witnesses, and we think he was right in entering the decree dismissing the bill.

The decree must be affirmed.

The other Justices concurred.