Kelsay v. Taylor

Tender — Sufficiency—Amount. 1. A tender to be good must be for not less than the amount due, and a tender after suit brought is not good if it does not include the clerk’s fee paid by plaintiff as required by law on filing the complaint. Action — Commencement—Proceedings Constituting. 2. Section 51, B. & C. Comp., provides that actions at law shall be commenced by filing a complaint, and hence an action is begun when the complaint is filed though summons lias not been issued. Bills and Notes — Notes Payable at Bank — Bank as Agent of Payee. 3. A provision in a note making it payable at a particular bank does not make the bank agent of the payee to receive the money unless actually in possession of the note when the money is sent. Garnishment — Money in Hands of Bankers as Agents — Right to Garnish. 4. Where bankers were, by a letter of instruction with a remittance, made the agents of the sender to And the holder of a mortgage note and pay the money, and the tender was insufficient and the money refused, and it remained in the bank’s hands subject to the orders of the sender, the assignee of a judgment against the sender had a perfect right to garnish the bankers. Attorney and Client — Authority of Attorney — Scope of Employment — Right to Bind Client. 5. A daughter having given a mortgage to secure her father’s note which was overdue, the father sent money to a bank to pay the mortgage. The bank tendered the money to plaintiff’s attorney in a suit to foreclose, but the tender was refused as insufficient, for failure to include certain accrued costs. The attorney, who held a judgment against the father, assigned it to a nominal assignee, who issued execution on the judgment and garnished the bank which paid over the money to be applied on the execution. Held, that the receipt of the money by the attorney was not payment of the mortgage, the money having been obtained by him in a matter entirely outside the scope of his employment by the plaintiff in foreclosure, who was not charged with any participation in the scheme, in which the attorney was not authorized to bind his client. Judgment — Order as Binding Persons Not Parties. 6. The court could not make a valid order in a suit that would bind persons not parties, or be conclusive on them as to the ownership of money charged to be in their hands which should rightfully be applied in discharge of the claim on which the suit was brought. Mortgages — Foreclosure—Pleading—-Variance. 7. Where a complaint on foreclosure, showing the volume and page where the mortgage was recorded in the county records, only alleged as to the mortgage note that “the following is a substantial copy” of it, and did not attempt to set it up haec verba, a variance in the description in that the copy omitted words showing where it was to be paid and when interest was payable could not have misled defendants to their prejudice, and hence was not material, Section 97, B. & C. Comp., providing that a variance shall not be deemed material unless it does in fact mislead.

Statement by Mr. Justice McBride. This is a suit by Mrs. E. A; Kelsay against Alma Taylor and O. D. Taylor to foreclose a mortgage upon, certain real property situated in Dalles City, Wasco County. On September 12, 1904, defendant, O. D. Taylor, borrowed $500 of plaintiff, giving a promissory note, signed by himself, and a mortgage signed and executed by him as attorney in fact for the defendant Alma Taylor, to secure the payment of the note. The loan was originally for one year, but at the expiration of that period the time of payment was extended for another year. The original note is as follows: “The Dalles, Oregon, September 12, 1904. “$500.00. One year after date, without grace, I promise to pay to the order of Mrs. E. A. Kelsay, five hundred dollars ($500) for value received, with interest after date at the rate of eight per cent per annum until paid. Principal and interest payable in United States gold coin, of the present standard value at the bank of French & Co., The Dalles, Oregon. Interest payable annually, and in case suit or action is instituted to collect this note, or any portion thereof, I promise to pay such additional sum as the court may adjudge reasonable as attorney’s fees in said suit or action. O. D. Taylor.” On September 14, 1906, two days after the note became due, plaintiff filed in the circuit court for Wasco County, a complaint in foreclosure, setting forth what was claimed to be a substantial copy of the note, but omitting the line containing the words, “at the bank of French & Co., The Dalles, Oregon. Interest payable annually.” The mortgage was referred to in the complaint by the book and page of the county records whereon it was recorded. On the 18th day of the same month defendant O. D. Taylor transmitted to French & Co. $541, the principal and interest on the note, accompanied by the following letter: “Portland, Oregon 9-18, 1906. “French & Co., The Dalles, Oregon. “Gentlemen: Enclosed find certificate of deposit with Ladd & Tilton for $541.00. Will you please pay the mortgage and note on my daughter, Alma’s, property, corner Fifth and Washington streets. I supposed the’note was with Butler, but phoned him this morning and the phone worked so badly that I could not understand him, but thought he said it had been sent to The Dalles. Could not tell whether he said Huntington & Wilson or W. H. Wilson. Mrs. Taylor will be at The Dalles Thursday or Friday and will pay you for your trouble. Mr. Hostetler will know about this note. Sincerely yours, O. D. Taylor, attorney in fact for Alma Taylor.” On the 19th of September French & Co. tendered the above amount to W. H. Wilson, plaintiff’s attorney in the foreclosure suit, who refused to accept the same, whereupon the money remained in the bank of French & Co. until the 24th day of September’ when notice of garnishment was served upon French & Co. upon an execution issued on a judgment rendered in favor of Joseph A. Johnson and against O. D. Taylor. French & Co. answered, admitting possession of the $541, and paid it over to the sheriff, to be applied on the execution. Johnson had assigned the judgment to W. H. Wilson, who, immediately before the execution was issued, assigned it to Skene, admittedly for the purposes of collection. The defendants, by their amended answer denied the execution of the note and mortgage set up in the complaint, but admitted execution of a note and mortgage bearing the same date and amount, and alleged that the note had been fully paid and satisfied. For a further and separate defense defendants alleged the execution of the note set forth in this statement, giving a copy of it in full, and also setting forth in full a copy of the mortgage, from which it appeared that the note and mortgage were identical with that described in the complaint, with the exception of the omitted line above referred to. The answer alleged that the note and mortgage were given Mrs. Kelsay for a debt due for money borrowed of her by Alma Taylor, and that defendant O. D. Taylor, in signing the note, inadvertently omitted to describe himself as the agent of Alma Taylor. The answer also sets up the facts in regard to the transmission of the money to French & Co. and of their tender thereof to Wilson, and his refusal to accept the same, and alleged that while he was still attorney for plaintiff he obtained the money and was still holding it so that defendants could not bring the amount with costs of suit into court. In a further separate answer the defendants recited the facts hereinbefore stated, in relation to the judgment against O. D. Taylor, and alleged that Wilson’s refusal to receive the money was in pursuance of a fraudulent intent to get possession of it to apply on his own judgment against Taylor; that on the day execution was issued on the judgment he fraudulently assigned it to Skene; and that the whole arrangement was fraudulently made for the benefit of Wilson who actually received the money. The defendants asked the court to adjudge that the tender made by the bank to Wilson was a continuing tender and a satisfaction of the note and mortgage, and that Wilson be directed to apply the money on plaintiff’s claim. A general demurrer was interposed to the two last defenses and sustained by the court. The parties then went to trial upon the issue raised by the first defense, and thereupon defendants objected to the introduction or any proof of the note and mortgage on the ground of the variance between the actual instruments and those described in the complaint. These objection having been overruled, the defendants introduced no testimony, and the plaintiff had a decree, from which defendants appeal.