On liehearing
Christianson, J.Plaintiff in a petition for rehearing asserts that the decision of this court in Trubel v. Sandberg, 29 N. D. 378, 150 N. W. 928, cited and relied on in our former decision, is neither applicable to nor controlling in this case. In Trubel v. Sandberg, two questions of agency were presented: (1) Did Mrs. Trubel constitute Faber hex-agent to collect the mortgage indebtedness? (2) If so, did Faber in turn constitute the Investment Company her agent for the same purpose? The first question to be determined in that case was the authority of Faber. Upon that question Mrs. Ti-ubel testified “that she had no dealings with the Investment Company, but had all her dealings-with Faber, and that she had delivered over her money to Faber, relying upon his integrity to look after the matter for her.” The testimony further showed that she purchased the loan involved in that case through *57the agency of Faber, and that “as the interest coupons became due she clipped the same, and handed them to Faber, with the request that he collect the money for her.” Mrs. Trubel also testified: “Knowing Mr. Faber as I did, and his connection with the bank, I was perfectly satisfied with anything he did in the way of looking after this mortgage investment.” This court held that this testimony, when considered in connection with the undisputed fact that Faber did not have possession of the note and mortgage, and that these instruments were retained by Mi's. Trubel, was insufficient to establish agency on the part of Faber.
In the case at bar, it is again earnestly contended, on the petition for rehearing, that the following statement in a letter to the Investment Company gave actual authority to such company to collect the principal of the note and mortgage, regardless of the fact that such instruments were never delivered to the Investment Company, to wit: “I want to give you notice now that I want my money on all these loans when due. They are all too slow for me.
Yours very truly, L. C. Moeszinger.”
Besmehn Apr. 15/12. Curtis & Humphrey Nov. 1/12.
It is not" contended that the plaintiff had any knowledge of this letter at the time he páid the principal to the Investment Company; and no claim of ostensible authority is based thereon. The sole question is whether this statement, when considered in connection with the undisputed fact that the mortgage and notes in question were retained by the defendant, gave the Investment Company actual authority to collect the principal of the loan. We still believe that the statements in this letter are less evidence of actual authority than the authority with which Faber was invested, under the evidence of Mrs. Trubel. But this court held that Mrs. Trubel’s testimony, when considered in connection with the fact that she retained the instruments of indebtedness, failed to show Faber’s authority to collect the principal.
Plaintiff’s counsel has - cited numerous authorities to the effect that express authority to receive payment may be shown by other proof than the possession of the securities. We have said nothing to the com trary. We do not.contend that want of possession is conclusive evidence of want of authority; but we do hold (and this rule is recognized by all the authorities cited hy plaintiff’s counsel), that as possession of evidences of indebtedness, in the absence of countervailing facts, clothes *58the agent with apparent authority to collect the indebtedness, so want of possession of such papers, while not conclusive, is evidence of great importance tending to show want of authority. The presumption is that an agent who has possession of the security has authority to make collection thereof; and the presumption is also that an agent who does not have such possession has no authority to collect.
In Loizeaux v. Fremder, 123 Wis. 193, 101 N. W. 423, the supreme court of Wisconsin said: “Negotiability being established, there results the rule that the debtor’s duty is to pay to the person who owns the note at the time of payment, or to an agent of such owner actually authorized to receive payment; that no payment to any other person can be of any effect unless made in reliance upon the actual possession of the note, or upon words or acts of the owner so unambiguously declaring the authority of such other person to receive such particular payment as to estop the owner from denying such authority. Possession of .a negotiable instrument is generally the sole adequate evidence of apparent authority to collect upon which the debtor has any right to rely, or can, without negligence, do so. . . . This rale has been held sufficient to deny efficacy to such acts as permitting collection of interest, or even prior instalments of principal, which, in relation to other business not involving collection of negotiable paper, might well suffice to establish apparent agency. Commercial paper has always been favored in the law, not less for the ultimate benefit of the giver than of the holder, and the rule just referred to is in line with that policy. It is so simple, and, once understood, furnishes so easy and sure a means for both debtor and owner to protect themselves against unauthorized acts of others, that it ought not to be weakened or confused. The holder can always be safe by retaining the instrument in his possession; the debtor, by refusing payment without actual presentation.” The rule laid down by the Wisconsin court was quoted with approval by this court in Trubel v. Sandberg, 29 N. D. 378, 150 N. W. 928, and is equally applicable in the case at bar.
Plaintiff had the burden of showing the authority of the Investment Company to receive payment. The only evidence of such authority is the statement in the letter. Against such is the strong presumption of want of authority, raised by the fact that the defendant retained the securities in her possession, as well as the positive evidence of Moes*59zinger that such authority was never conferred. We are agreed that plaintiff has failed to show that the Investment Company was authorized to receive payment of the principal of the mortgage indebtedness.
The former opinion will stand. A rehearing is denied.