BEASLEY v. SPARKS

BEASLEY v. SPARKS
1933 OK 197
20 P.2d 584
163 Okla. 15
Case Number: 21551
Decided: 03/28/1933
Supreme Court of Oklahoma

BEASLEY
v.
SPARKS

Syllabus

¶0 1. Principal and Agent--Existence and Scope of Agency as Questions of Fact.
It is the settled rule that the question of agency and the scope and extent of the agent's authority are to be gathered from all the facts and circumstances in evidence and are to be determined either by the jury or the court as a trier of fact.
2. Same--Findings as to Agency for Collection of Note Sustained.
Record examined, and held, findings of the trial court are not against the clear weight of the evidence.

Appeal from District Court, Sequoyah County; J. T. Parks, Judge.

Action by J. N. Beasley against R. E. Sparks et al. Judgment for defendants, and plaintiff appeals. Affirmed.

Roy Frye, for plaintiff in error.
W. A. Carlile, for defendants in error.

RILEY, C. J.

¶1 This is an appeal from a judgment and decree in favor of defendants in error, defendants in the trial court, in an action brought upon a note and for foreclosure of a mortgage given to secure said note.

¶2 It appears that the note and mortgage were executed September 1, 1921, by J. E. Sparks and wife, who then owned the land, to Graves-Newman Investment Company, a corporation, of Pittsburg, Kan., and thereafter assigned to plaintiff. The note was for $ 1,100, due July 1, 1928. Defendant J. M. Talley became the owner of the land in December, 1925.

¶3 The interest on the note was payable semiannually, and it appears that all installments of interest were paid when due until about August, 1927, at which time the building on the land was destroyed by fire. The building was insured and the loss was adjusted and settlement had between the owner and the insurance company. The amount of loss agreed upon was $ 2,132.61. During the course of adjustment of the loss, the insurance company was advised of the mortgage lien in favor of Graves-Newman Investment Company, and in payment of the loss, issued its check or draft payable to defendant J. M. Talley and the Graves-Newman Investment Company. When the check or draft arrived, it was sent by Talley or the bank to Graves-Newman Investment Company for its indorsement. It appears that that company declined to indorse and return the check or draft unless Talley would rebuild the house or pay off and discharge the note and mortgage. Talley decided to pay the note. Thereupon the check was indorsed by the Graves-Newman Company and returned to the bank at Sallisaw, Okla. One thousand one hundred thirty-eight and 50/100 dollars of the proceeds was deposited to the credit of Graves-Newman Company, and the balance, $ 994.11, was deposited to the credit of defendant J. M. Talley. The amount credited to the Graves-Newman Company was the amount of the principal of the note and interest thereon to January 1, 1928. The note provided that the sum of $ 100, or any multiple thereof, might be paid by the maker at any interest-paying date.

¶4 On October 28, 1927, the Graves-Newman Investment Company wrote Talley advising him that the cashier's check for the $ 1,138.50, issued by the First National Bank of Sallisaw, "in payment of your loan and interest to January 1, 1928, has been refused and returned to us with information that the bank is closed."

¶5 It is the contention of plaintiff that Graves-Newman Company was the agent of defendant in the matter, while defendants contend it was the agent of plaintiff. The trial court found that the Graves-Newman Company was the agent of plaintiff in the collection of both the interest and principal, and entered judgment accordingly for the defendants, in effect, holding that the note had been paid in full. The testimony of plaintiff was positive and direct that he had never authorized Graves-Newman Investment Company to collect either principal or interest for him, and that he was at all times in possession of the note, and also had always kept possession of the coupons until he received payment from Graves-Newman Investment Company. Plaintiff contends that when defendant paid Graves-Newman Investment Company without receiving the note and without that company having possession thereof, he did so at his peril.

¶6 With all these facts and circumstances before the court in evidence, we are not willing to say that the finding of the trial court was not sufficiently supported by the evidence, or that the findings were against the clear weight of the evidence.

¶7 The judgment is affirmed.