62 Neb. 464 | Neb. | 1901
This was an action to foreclose a real estate mortgage instituted by the appellant, herein styled the plaintiff, in the district court for Webster county, Nebraska. This
Plaintiff contends that there was no evidence introduced below tending to show the agency of the Nebraska & Kansas Farm Loan Company to collect for the plaintiff the principal sum of the note in controversy, and certainly none in any way tending to show any authority to accept
Defendants rely on the cases of Phœnix Ins. Co. v. Walter, 51 Nebr., 182, and Thomson v. Shelton, 49 Nebr., 644, as tending to support the judgment of the trial court in this case. The case of Phœnix Ins. Co. v. Walter, supra, is in some respects similar to the case at bar. In that casé the note and mortgage were executed through the same instrumentalities as the one in the case at bar. The difference in the facts, however, which clearly distinguishes that case from this one is that the Phoenix Insurance Company, which was the holder of the note, had a course of dealing with the Nebraska & Kansas Farm Loan Company in which that company had acted as its collecting agent; while in this case no such course of dealing was ever shown to have existed between the plaintiff and that company; and while, in the case just cited, the loan was renewed, yet the renewal loan was sold and transferred by the Nebraska & Kansas Farm Loan Company and the proceeds thereof placed to the credit of the insurance company on their books, and the collecting agent of the insurance company was notified by the loan company of this collection, and a part of this collection appears to have been paid to the insurance company. Now in the case at bar there is no proof at-all that one cent of the money received for the sale of the new note given to the loan company was ever credited to Moore & Co. or to this plaintiff, or that either of them was ever notified, either that the loan had been extended and a new note and mortgage taken, or that such new note had been sold or anything received from the sale thereof. In fact, the evidence shows that the plaintiff never had any knowledge of the existence of the Nebraska & Kansas Farm Loan Company, or any dealing of any kind whatever with it, so far as she knew. The case of Thomson v. Shelton, supra, differs from the case at bar in this, that the loan was paid in money to the mortgagee and payee of
This case seems to stand on all fours, so far as the facts are concerned, with the case of Richards v. Waller, 49 Nebr., 639, in which it is said: “Where payment of a negotiable note secured by mortgage was made to an investment company and such payment was never forwarded to the party to whom such note had been transferred, held, that the mere fact that antecedent payments of interest made in like manner had been made to be forwarded to the transferee of such note, and had been so forwarded, did not bind the holder of the note as to the final payment not forwarded, it being shown by the evidence that such holder had never in any way held out or recognized the investment company as her agent.”
It follows from the above course of reasoning that the judgment of the district court is not founded on sufficient evidence to show the agency of the Nebraska & Kansas Farm Loan Company in taking a new loan from the defendants in payment of the plaintiff’s claim, but as there has been no hearing in the court beloAV on the answer and cross-petition of defendant Slocum, it is recommended that the judgment of the district court be reversed, with directions to the loAver court to enter a judgment in favor of the plaintiff on her note and mortgage as prayed for in her petition.
For the reasons stated in the foregoing-opinion the judgment of the district court is reversed, with
Reversed.
Reversal modified. Case reversed generally.