Kann v. Fish

I dissent. It is the well established rule in this state that, where the maker of a negotiable promissory note pays the same to the original payee, who is not at the time the owner of said note, and makes said payment without production and surrender of the note, he pays at his peril, unless he is able to establish that the party to whom the payment is made is the agent of the owner of the note, or that the creditor is estopped by reason of circumstances to deny such agency. We have had occasion quite recently to pass upon this question. See Shoemaker v. Minkler,202 Iowa 942, and cases cited therein; Shoemaker v. Nodland,202 Iowa 945; Shoemaker v. Ragland, 202 Iowa 947; Carr v. Benjamin,207 Iowa 1139; Ritter v. Plumb, 203 Iowa 1001; Iowa Sav. Bank v.Christensen, 200 Iowa 170; Huismann v. Althoff, 202 Iowa 70; Woodv. Swan, 206 Iowa 1198.

In this case, the debtor, Fish, had no dealings whatever with the appellant. He had neither notice nor knowledge that appellant owned the note and mortgage. He had executed the instruments payable to the Clayton County State Bank. The assignment from the bank to appellant was not recorded.

The question finally resolves itself into a fact question as to whether or not, under the record, the payment by the appellee Fish to Murphy was a payment to the appellant, or an agent of the appellant. It may be conceded at this point that there is sufficient evidence in the case to warrant a conclusion that Murphy was the agent of the Clayton County State Bank, and had been held out as such by said bank; so that, had said bank been the owner of the note and mortgage in question, payment to Murphy might be held, under the record, to be a payment binding upon the Clayton County State Bank, as principal, through Murphy, as its agent. The difficulty with appellee's contention is that there is no showing whatever that Murphy was at any time or in any manner the agent of the appellant. There were no dealings whatever directly between appellant and Fish. Nor does it appear that the appellant in any manner held out the Clayton County State Bank to Fish as his agent. It does appear that Fish paid the interest on the note, from year to year, to Murphy, and that Murphy informed him that the note was held by someone at Guttenberg. But the record fails to show that appellant had any knowledge whatever that the payments of interest were being made through Murphy. There were no dealings between Kann and Murphy. The money paid by Fish to Murphy as interest was remitted by Murphy to the Clayton County State Bank, and it gave Kann credit for the same by placing it on deposit in his account and advising him that the payment had been made. Upon this state of the record, I do not think it can properly be said that either the Clayton County State Bank or Murphy was proven to be the agent of the appellant, with authority to receive the amount of the note and mortgage held by appellant. There was no such holding out of either of said parties by the appellant as being his agent as to estop the appellant from denying said agency, or to constitute either the bank or Murphy the so-called "ostensible agent" of the appellant. At all times the appellee was in a position where he could have fully protected himself by demanding the production of the note and mortgage when he undertook to pay the same. He did not do so, and therefore, under the well established rule, it must be held that he paid at his peril, and that the appellant was not bound by the payment made to Murphy.

I am of the opinion that the decree of the trial court was erroneous, and that a decree should have been entered in favor of the appellant for the amount due on said note and for foreclosure of said mortgage. The decree appealed from should be reversed.

STEVENS, KINDIG, and GRIMM, JJ., join in this dissent.