Hughes v. Dundee Mortgage Trust Investment/Opinion of the Court

It has been necessary to state the facts at length in order to make the case intelligible. But the questions of law lie within a narrow compass. The scope and effect of the contract in question depended wholly upon written correspondence, and in no degree upon extrinsic circumstances, and were, therefore, to be determined by the court. Goddard v. Foster, 17 Wall. 123, 142; Hamilton v. Insurance Co., 136 U.S. 242, 255, 10 Sup. Ct. Rep. 945. The duties of Gibbs, the plaintiff's predecessor, as defined in the letter to him from the secretary of the company of August 24, 1874, containing the terms of his appointment 'as law agent in and concerning the preparation of mortgages for loans authorized by them in America,' were to 'do all work, and carry through all procedure, and see to the execution and registration and publication of deeds requisite and necessary for giving and securing to the company valid and effectual first and preferable mortgages over real estate for such loans as the directors at Dundee may from time to time sanction and authorize,' and to 'be responsible to the company for the validity and sufficiency of all mortgages prepared or taken by' him. For the protection of borrowers, as well as of the company, he was prohibited from taking or receiving in behalf of the company any commission or bonus from borrowers beyond lawful interest on the money lent them; from acting on the one hand as a local director of the company, or being interested on the other in any property mortgaged, or proposed to be mortgaged; and his 'professional fees against borrowers, including abstracts, searches, investigating titles, preparation and recording of mortgages,' were limited by a scale prescribed. Although 'certificates of title' were not specifically mentioned, it is quite evident that his duties, as thus defined, included a report or certificate in some form to the company of the title of each parcel of land upon the mortgage of which it was to lend money. It is equally evident that he was to be paid nothing by the company, but was to find his whole compensation in the fees paid him by the borrowers and mortgagors. It was admitted that the plaintiff took his appointment on the same terms as Gibbs had taken his, save only as it might be varied by the secretary's letter to the plaintiff of December 18, 1875, and by the directors' resolution and the printed rules inclosed in that letter. The secretary's letter to the plaintiff informed him that he had been appointed 'law agent for the company in Portland,' referred to his previous experience of the duties of this position, and reminded him tht h e would be personally responsible to the directors and the company for its having a clear and indisputable first mortgage in each case, and for its business being conducted in accordance with the local laws. Among the plaintiff's duties, as defined by the printed rules sent him, were 'to prepare all mortgages, deeds, notes, coupons, and other documents in connection with the company's loans, and to be responsible for their due execution, publication, registration, and validity;' and 'to be responsible that all mortgages taken are a clear and indisputable first lien upon the subjects mortgaged, and to grant certificates to that effect.' In this respect, these rules exactly accord with the prior directions to Gibbs, except in expressly mentioning (what was only implied in those directions) the duty to grant certificates of title. The necessary conclusion is that, so far as the duty of investigationg and certifying titles and preparing mortgages, and of being responsible to the company for the due executing and registration of the mortgages and for their validity as a first lien on the lands mortgaged,-in other words, so far as his duties were substantially the same as those previously performed by Gibbs,-he was to be compensated in the same manner, namely, by fees paid by borrowers; and this is clearly assumed in the plaintiff's subsequent letter of September 30, 1876, to a director of the company, and in the ensuing resolution of the company and letter of that director. The compensation to be received by the plaintiff for such duties was not increased or affected by the fact that by the rules by which he was governed he was also made general attorney and counselor of the company, and might, for his services as such, (in regard to which no question arises in this case,) be entitled to other compensation, as none had been specified in the contract between the parties. Judgment affirmed.

In Nos. 307 and 308, between the same parties, and argued at the same time, the facts are similar, and the judgments are likewise affirmed.