15 Neb. 630 | Neb. | 1884
In March, 1881, the plaintiff executed a note to W. H. Dickinson for the sum of $95, due in one year, with interest at ten per cent. A few days after the execution and delivery of the note, Dickinson endorsed it as follows: “ Pay Geo. T. DeRoe or order W. H. Dickinson,” and sent the same to DeRoe, who resided in New York. After-wards DeRoe endorsed the, note as follows: “ Pay to W. H. Dickinson for collection G. T. DeRoe,” and sent the note to Dickinson. To secure the payment of this note, the plaintiff executed to Dickinson a chattel mortgage on personal property of the value of several hundred dollars. The plaintiff afterward paid the sum of $68 on the note. To obtain the balance due thereon the defendant seized the mortgaged property. The plaintiff thereupon brought an action of replevin and regained the possession. On the trial of the cause a jury was waived and a trial had to the court, which found in favor of the defendant, and found the value of his interest to be the sum of $42.25. The principal error relied upon is, that the finding is against the weight of evidence. The testimony tends to show that the only consideration for the note was the sum of $60, and it is therefore claimed that the contract is usurious. We think that usury is clearly proved, and if the action was between the original parties to the transaction this court would have no hesitancy in reversing the judgment. But DeRoe claims to be a bona fide purchaser of the note for value, before maturity, and without notice of any defense to the same. If this is true he would take the note free from the defense of usury. Wortendyke v. Meehan, 9 Neb., 229. The testimony upon this point is conflicting, there being some testimony tending to show that Dickinson was the agent of DeRoe. . But the agency is positively de
Judgment affirmed.
