42 P. 615 | Or. | 1895
Lead Opinion
On Motion to Dismiss Appeal.
Motion Overruled.
Opinion on the Merits
Argued November 9, 1896: decided January 18, 1897; rehearing denied.
On the Merits.
Opinion by
Plaintiff seeks the foreclosure of two certain mortgages by separate causes of suit. The defendant interposed a plea of payments not credited as a partial defense to the first cause, and usury as to the second. The court below sustained the defendant’s contention, and its decree is for plaintiff upon the first for a small balance due, and in favor of the state and against the defendants upon the second. Plaintiff appeals from the whole decree, but without making the state a party, or serving it with notice, and defendants challenge the regularity of such appeal by a motion to dismiss. The main case presents largely questions of fact. The motion to dismiss was considered, and an opinion rendered touching it some
The question arising upon the second cause is whether the note of $1,000 sued on is tainted with usury. The testimony directly bearing upon the transaction is meager. The note is made payable to “Geo. W. Rowland, Agent,” and the mortgage executed to secure its payment is to “Geo. W. Rowland, Agt. of.” The money loaned belonged to one C. W. Deitzel, who drew his check on French & Co., bankers, for the full amount of $1,000 in favor of Rowland. This check is indorsed by Rowland, showing that he received the money. Deitzel testified that the note was delivered to him soon after its execution, and should have been endorsed by Rowland, but by an oversight was omitted until he had traded it to Barger, the plaintiff herein, when it was endorsed as follows: “Pay to John Barger, without recourse, Geo. W. Rowland.” This tends to show that Rowland was the agent of Deitzel in making the loan. The latter evidently knew the loan was about to be consummated, as he consulted the defendant about the security. As touching the transaction, the defendant testifies as follows: “Q. What was the real consideration that you received for the execution of the $1,000 note sued on in this proceeding? A. It was $950 less some expenses of a mortgage, or recording, or something of that kind. Q. Was that all the money you received for the execution of the note? A. Yes, sir.” This is, in effect and substance, all the tes
Reversed.