Opinion
No. 19104
Opinion Filed June 18, 1929.
(Syllabus.)
Bills and Notes — Payer's Risk in Paying Note to Other Than Holder.
Payment of a negotiable note before maturity to any one other than the holder thereof, or his duly authorized agent to receive such payment, is at the risk of the payer. Monroe et al. v. Kitterer, 127 Okla. 212, 260 P. 479.
Commissioners' Opinion, Division No. 2.
Error from District Court, Seminole County; George C. Crump, Judge.
Action by W. H. Keig against J. A. Lawson and others to recover on a promissory note and for foreclosure of a mortgage. Judgment for plaintiff for less than sued for, and he appeals. Reversed and remanded, with directions.
Kirshner, House, Stroheker Bennett and McKeown Green, for plaintiff in error.
R. J. Roberts, for defendants in error.
This is an action on a promissory note by W. H. Keig against J. A. Lawson and others to recover the sum of $1,800 and to foreclose a real estate mortgage on 120 acres of land situated in Seminole county given to secure the note. This note and mortgage was executed by defendants to the Conservative Loan Trust Company and bears date of July 15, 1922; was by said loan and trust company sold, transferred, and delivered to W. W. Bennett Company on December 1, 1922, and by said W. W. Bennett Company, before maturity, sold, transferred, and delivered to plaintiff herein, said plaintiff paying full face value therefor. The note is a negotiable note.
It appears from the evidence that defendant Lawson, before maturity thereof, paid to the Conservative Loan Trust Company $900 on the note. This payment is pleaded by defendant as a partial defense to this action. The trial court sustained this plea and rendered judgment in favor of plaintiff for the sum of $900 and for foreclosure of his mortgage.
Plaintiff appeals.
It is assigned as error that the judgment is not sustained by the evidence and is contrary to law. This assignment is well taken. Plaintiff is an innocent purchaser, before maturity and for value. The Conservative Loan Trust Company, to whom this payment was made, did not have possession of the note at the time payment was made, nor was it authorized by plaintiff to make the collection. This payment was, therefore, made at the risk of the payer. Weyl v. Smith, 122 Okla. 216, 253 P. 982; Bale v. Wright, 120 Okla. 174, 252 P. 56; Winnebago State Bank v. Hall, 127 Okla. 215, 260 P. 497; Chase v. Commerce Trust Co., 101 Okla. 182, 224 P. 148; Monroe v. Kitterer, 127 Okla. 212, 260 P. 479.
There is absolutely no evidence tending to establish agency between plaintiff and the Conservative Loan Trust Company.
Judgment should be reversed, and the cause remanded, with directions to enter judgment in favor of plaintiff for the entire amount sued for, together with interest, costs, and attorney's fee, and for foreclosure of his mortgage.
TEEHEE, HALL, JEFFREY, and DIFFENDAFFER, Commissioners, concur.
By the Court: It is so ordered.