McDonald v. Smith. his appeal. [State v. Pieski, 248 Mo. 718, 154 S. W. 747; Hofstatter v. Cantrell, 180 S. W. 435; State ex rel. v. Robertson, 264 Mo. 661, 671, 175 S. W. 610; State v. Chilton, 200 S. W. 745; State v. Dempsey, 168 Mo. App. 298, 153 S. W. 1064; State v. Faith, 180 Mo. App. 484, 494, 166 S. W. 649; State v. Bailey, 192 Mo. App. 391,. 395, 181 S. W. 605.] Although this appeal was taken eight months before it was set for hearing, appellants give no excuse for not perfecting the appeal except that they waited for the printed docket or notice from the clerk. The law's delay is largely in the appellate courts and while this court is always reluctant to dispose of any case otherwise than on its merit, we do not think that any good cause has been shown for not having the case ready for hearing at this term or that the cause of justice will be served by continuing this case to another term. The motion for continuance is overruled and the appeal is dismissed. Bradley and Farrington, JJ., concur. R. H. McDONALD, ET AL., Defendants in Error, v. ADNA SMITH, Plaintiff in Error. Springfield Court of Appeals, November 25, 1918. 1. BILLS AND NOTES: Payments by Maker: Notice of Ownership: Constructive Notice. The maker of a negotiable promissory note must take notice that the note is likely to pass into the hands of a third party. 2. -: Authority to Collect: Duty of Maker. The maker of a negotiable note in making payments thereon must ascertain that the person to whom payment is made is the owner or has possession thereof for collection and if not, the burden is on him to show the agents authority to collect. ity. 3. PRINCIPAL AND AGENT: Collection of Notes: Extent of AuthorWhere the purchaser of a note sent interest coupons to the payee for collection, the payee had no authority to collect coupon notes not sent in for collection, nor to collect any part of the principal note not yet due and never in agent's hands. McDonald v. Smith. 4. 5. 6. : If the holder of a note merely sent the interest coupon notes to a third person after he had collected and paid her the amount thereof, he was not her general collection agent. -: Place of Collection: Presumption of Authority. No inference of agency on the part of the proprietor of an office to collect a note arises from the fact that the note is payable at that office. : Payments to Agent: Care Required. One paying note not yet due must ascertain that owner has deposited note with agent for collection, since authority of agent to receive payment does not confer authority to collect before maturity. Error to Howell County Circuit Court.-Hon. E. P. Dorris, Judge. REVERSED AND REMANDED (with directions). M. E. Morrow for plaintiff in error. No brief for defendant in error. STURGIS, P. J.-In this suit plaintiff, as owner of certain land in Howell County, tenders and pays into court $300 which he claims is the balance due on a note which defendant claims to own, secured by a deed of trust on such land, and asks the court to enter judgment declaring said note fully paid and the deed of trust satisfied and discharged. After judgment by default was entered and set aside, an answer was filed by defendant, in which she asserts her ownership of the secured note, claims that there is a balance of $800 and some interest due on said note and asks a judgment for that amount and a decree foreclosing the lien of the deed of trust and ordering the land sold to pay said debt. The real question at issue is whether the plaintiff is entitled to have credited on the note $500 which he paid to an alleged agent of defendant, but which defendant in fact never received. The judgment in the lower court is for plaintiff and defendant brings the case here by writ of error. The plaintiffs having won the case in the trial court, have seemingly lost all interest in the same and McDonald v. Smith. have filed no brief, statement or argument in this court. We regret this as this court is entitled to the benefit of the authorities cited and relied on and the arguments advanced by the prevailing party in the trial court. As it is we are compelled to gather the facts from the record and statement of the appellant and to find and declare the law as best we can. The facts as we gather them are, that one James F. Gilmore, being the owner of this land on February 1, 1911, borrowed $800 thereon through B. H. Bonfoey, a loan broker at Unionville, Mo., giving the note in question for $800, payable to A. M. Bonfoey five years after date, and executing a deed of trust to B. H. Bonfoey as trustee to secure the same. This $800 note is a coupon note and had attached thereto ten coupon or interest notes for $24 each representing the semiannual interest payments. Bonfoey sold this loan, as was his custom, in a short time and the defendant, Miss Adna Smith, who then and now lives at Burlington, Iowa, became the purchaser and owner thereof in February, 1911. One Brooks, a banker of the same town, advised and assisted Miss Smith in purchasing this loan, the collection of interest, etc. Gilmore, the mortgagor and maker of the note, was somewhat acquainted with Bonfoey's loan business and methods, being himself a local agent in securing loans for Bonfoey, and says he knew that Bonfoey did not continue as owner of this loan, but did not know to whom it was sold and transferred. The note and coupons were by their terms payable at the office of B. H. Bonfoey, Unionville, Mo. Gilmore sold this land a year or so later to Milton Reed, who in turn sold it to plaintiff, McDonald, in December, 1913, nearly three years after the loan was made and two years before it became due. Plaintiff in purchasing the land assumed and agreed to pay the note and interest thereon. Gilmore says he made the interest payments while he owned the land through the office of Bonfoey at Unionville, Mo. About the time plaintiff purchased the land Bonfoey quit the loan business at Unionville, McDonald v. Smith. Mo., and went to Oklahoma City, Okla., and there organized and was president of the Bonfoey Loan & Investment Company. Plaintiff says he learned from Gilmore, the former owner of the land, that he could pay interest on this loan through Bonfoey at Oklahoma City. Plaintiff evidently wrote there about the same, for the first correspondence put in evidence is a letter of January 13, 1914, from the Bonfoey Loan & Investment Co. to plaintiff acknowledging receipt of "your favor of January 9th" and saying the interest on the Gilmore loan due February 1st and a balance on the "commission note" should be sent so as to reach that office before February 1st, and "if you wish to pay $200 or more on the principal you can do so and add it to the draft when you remit." Plaintiff thereupon sent to the Bonfoey Loan & Investment Company the February, 1914, interest and the balance due on the commission note and $500 additional to be applied on the principal. This $800 note was then owned by and in possession of defendant, was not due for two years and there is nothing in the note or mortgage giving the right to pay any part of the principal before maturity. The Bonfoey Company sent the interest then due to defendant, got the coupon note and sent same to plaintiff together with the "commission note" then fully paid but retained or embezzled the $500, and a year or so later failed and went into the hands of a receiver. Defendant never received this $500 and same was never credited on the note owned by her. The plaintiff's contention is that his payment to the Bonfoey Company at Oklahoma City was a payment to defendant's authorized agent and therefore a payment to defendant. Neither plaintiff nor defendant knew till near the maturity of the note that Bonfoey had embezzled this money, the defendant not knowing that any such payment had been made and plaintiff believing that a proper credit had been made upon the note wherever it was. The Bonfoey Company concealed the matter by continuing for a time to receive from plaintiff the 201 M. A.-6 McDonald v. Smith. interest payments, reduced from $24 to $9 to correspond with the reduction of the principal from $800 to $300, but remitting to defendant the full amount of $24 at each interest payment and getting from her and sending to plaintiff the cancelled coupon. The Bonfoey Company did not, however, remit to defendant the amount of the last two coupons of $24 each and she has these unpaid coupons attached to the principal note, though plaintiff says he paid these amounts also to the Bonfoey Company. The court tried this case to a jury and error is assigned to the giving and refusing of instructions, the admission and exclusion of evidence, etc. We shall give no heed to these matters, as the case is clearly one in equity both on plaintiff's petition and defendant's answer. The case therefore stands for trial in this court on the competent evidence. As said in Plummer v. Knight, 156 Mo. App. 333: "It must be remembered in considering the objections to this evidence that this is an action in equity and not one at law, and that the rule governing appellate practice as applied to equity cases is different from that applied to law cases. On appeal in an equity case, all the evidence is before the appellate court and the issues of fact as well as those of law are before such court for review, and, notwithstanding irrelevant and incompetent testimony may have been admitted by the trial court, the appellate court will sift the relevant from the irrelevant and the competent from the incompetent and render the proper judgment. [Lacks v. Butler County Bank, 204 Mo. 455, 102 S. W. 1007.]" The one question for determination here is whether the $500, paid by plaintiff to the Bonfoey Loan & Investment Co. in February, 1914, two years before the note in question was due but long after the defendant had become the owner of such note, was a payment to an agent authorized to collect same for defendant. The maker of a negotiable promissory note must take notice that such note is likely to pass into the hands of a third party. [Kellogg v. Morgan, 45 Mo. App. 245, 246.] |