I cannot concur in the conclusion reached by the majority of the court. In my opinion the facts shown in the record do not justify the finding that Samuels was the agent of the association in respect of any arrangement that he made with appellee. There is no evidence that the association had any relations whatever with appellee, or that it authorized or even knew of the agreement between him and Fisher, or that appellee was engaged in the work. Samuels, appellee's witness, and who at the time of testifying had no relations with the association, swore positively that he was not authorized, and did not undertake, to involve the association in the agreement between Fisher and appellee, and appellee admits that he had no communication with any one representing the association, but simply relied upon statements made to him by Samuels. As to these alleged statements, these two witnesses for appellee are in conflict.
At the time the mortgage was executed and the two checks given, appellee was in no way connected with the building operations. Fisher had employed, or was about to employ, another builder to make the improvements required by the mortgagee. But there is not a particle of evidence that the mortgagee was in any way connected with, or obligated to, this builder, or that there was any agreement or understanding by the mortgagee that the $1,500 or any other amount should be held by Samuels for, and paid by him, to the builder. On the contrary, Samuels, appellee's witness, testified that the money was to be held for Fisher until the improvements *Page 646 were made. The builder threw up the job, and some time later, it is difficult from the record to tell just when, Samuels returned to the mortgagee the $1,500 check which he had been holding in escrow.
Some time in the spring or early summer of 1927, after default for several months in paying the weekly installments due, the mortgagee ordered foreclosure. These proceedings were subsequently stopped, and the mortgage reduced by crediting the $1,500 on account of the original mortgage and overdue interest and charges.
This is not a case of a deposit for the benefit of the builder. In my opinion, as gathered from the record, the $1,500 check was held in escrow for the protection of the mortgagee only. On default in the mortgage, the association had the right, with the consent of the mortgagor, to credit the check on the mortgage debt and to continue the mortgage for the reduced amount. The mortgagor was entitled to an allowance for interest charged on the $1,500, which she never received, but that is a matter between the mortgagor and mortgagee, in which appellee is not concerned.
If I concurred in the view of the majority I would have to base that conclusion on suspicion. There are suspicious circumstances. But to base my conclusion on them I should have to disregard positive, uncontradicted, and apparently disinterested evidence offered by appellee himself. *Page 647