Hudson v. Evans , 21 Tenn. App. 535 ( 1937 )

On Petitions for a Rehearing. On a former day of the present term an opinion was filed and a decree entered affirming the decree of the chancery court in this case which dismissed plaintiff's bill at her cost.

In this court, the appellant, Mrs. Florence E. Hudson, filed nine assignments of error, all of which were overruled, except the seventh assignment, through which appellant asserted that the chancellor erred in decreeing "that by complainant's course of dealing with K.O. Reid and Bringhurst-Reid Company to handle the matters pertaining to this collateral as to him seemed best, and that upon this record K.O. Reid as President of Bringhurst-Reid Company was authorized to make said release."

As stated in our former written opinion, we disagreed with the learned chancellor in his finding that "upon this record K.O. Reid, as President of Bringhurst-Reid Company was authorized to make said release;" and upon this subject we said:

"Although there was an established course of dealing between complainant and the Bringhurst-Reid Company by which maturing notes held by complainant as collateral security to the note of Bringhurst-Reid Company were surrendered to Bringhurst-Reid Company and other collaterals substituted therefor, and accordingly a number of the series of S.E. Evans notes had been thus surrendered, we find no warrant in the record for the conclusion that the Bringhurst-Reid Company (or K.O. Reid as its President) was ``authorized' to release the lien of the trust deed securing any collateral notes so long as they remained in the possession of complainant. The appellant's seventh assignment of error is, therefore, sustained."

However, we held that our ruling upon appellant's seventh assignment of error did not affect the result; in that, by reason of other facts disclosed by the record, the chancellor did not err in dismissing complainant's bill and taxing her with the costs.

Within ten days after our former opinion was filed, the appellees, E.E. Murrey, trustee, and Walter H. Diehl and wife, filed a petition asking this court to grant a rehearing as to that part of our former opinion sustaining the appellant's seventh assignment of error. The petition calls our attention to the opinions of our Supreme Court in the cases of Conaway v. New York Life Insurance Co. et al., February 27, 1937, 171 Tenn. 290,102 S.W.2d 66, and Fidelity Mutual Life Insurance Co. v. Guess et al., January 16, 1937, 171 Tenn. 205,101 S.W.2d 694, which opinions had not been published when the briefs in the instant case were filed, and our attention had not been directed to these opinion when our former opinion was prepared.

It is said in the petition of appellees that the case of Conaway v. New York Life Insurance Co., supra, "is almost identical with the instant case, except in a few unimportant details, as to the material facts, and presents the same situation which is presented by this record, and the Court held in conformity with the decree of the Chancellor, and as stated in his decree."

It is also stated in the petition of appellees that the case of Fidelity Mutual Life Insurance Co. v. Guess et al., supra, sustains the main position of appellees, and announces the rule applicable to the instant case as contended for by appellees in their brief.

We have carefully examined the two opinions thus cited in the petition of appellees, and, in our opinion, neither of them is apposite to the case in hand.

Each of the two cases involved the determination of the question of whether the act of one who was admittedly an agent, with very broad powers, was within the scope, or apparent scope, of his authority in the representation of his principal.

In the instant case, the Bringhurst-Reid Company was the debtor, not the agent, of the complainant Mrs. Hudson. Of course, a creditor might, by express authorization, or by a course of dealing from which authority would be implied, constitute his debtor his agent for the performance of certain acts; but as stated, in substance, in our former opinion, the proof does not show that complainant at any time, either expressly or impliedly, authorized the Bringhurst-Reid Company (or K.O. Reid, its president) to release the lien securing any collateral notes so long as they remained in the possession of complainant. It is true that complainant from time to time surrendered to Bringhurst-Reid Company notes held by her as collateral security to the note of the Bringhurst-Reid Company, with the understanding that other notes would be substituted therefor; but the Bringhurst-Reid Company did not take such surrendered notes for collection as the agent of complainant. The Bringhurst-Reid Company took and held such surrendered notes in its own right, with power to collect them for its own use, and, if they were lien notes, to release the lien; but it did not follow from this that the Bringhurst-Reid Company was authorized to release the lien of notes which had not been surrendered to it, and which were in the actual and lawful possession of complainant as security for her loan to the Bringhurst-Reid Company.

The petition of appellees for a rehearing is denied and dismissed at their cost.

The appellant, Mrs. Florence E. Hudson, has filed a petition for a rehearing of the case on all of her assignments of error except the seventh; but this petitioner's counsel seems to have overlooked the long published rule of this court, rule 22, which provides that "petitions for rehearing and for other or additional findings of fact in any case must be filed within ten days after the opinion of the Court is filed." See William's Annotated Code, Vol. 7, p. 552; Appendix to 1 Tennessee Appeals Reports, page V. The Supreme Court has the same rule. William's Annotated Code, Vol. 7, p. 535.

The opinion of this court in this case was filed on July 17, 1937, and the appellant's petition was not filed until August 2, 1937, it therefore, came too late, and it is denied and dismissed at the cost of petitioner.

Crownover and Felts, JJ., concur.