80 Neb. 385 | Neb. | 1907
This case is here for the second time. • The opinion on the former hearing was by Holcolmb, O. J., and is reported in 78 Neb. 547. The former opinion contains a complete statement of the issues and facts. The main controversy then and now is over a promissory note held by the Blue Valley Bank, signed by the plaintiff, Henry Gund, and intervener, George H. Hayes. Intervener Hayes was not a party to the suit at the time of the former hearing. On the former hearing the court fully and very carefully considered all of the facts in relation to the execution of> the note referred to, and fixed the liability of the plaintiff, Gund, thereon as that of a principal debtor. In the opinion the chief justice says: “The plaintiff, when he undertook the payment of the obligation of Hayes Bros, in favor of the bank, at the time of the adjustment of the matters pending between him and the bank on the one part and the firm of Hayes Bros, on the other, and signed the note which the bank held against those parties, became, as we have seen, as between him and the bank, primarily liable thereon. The question presents itself as to the availability to him of the defense of usury in the determination of the amount legally due thereon. He having by this transaction become obligated to pay the debt, there can be no serious controversy, we apprehend, as to his undertaking to satisfy the note, being a new and different contract than the one then existing between the bank and Hayes Bros., and that the usurious character of the contract existing prior to such time in relation to such indebtedness was eliminated from the new contract, and, the old contract being terminated, the new was purged of the taint of usury theretofore existing. Building & Loan Ass’n of Dakota v. Walker, 59 Neb. 456; Webb, Usury, sec. 452; Culver v. Wilbern Bros., 48 Ia. 26. * * * We are of the opinion that the law will not permit him, acting in the dual capacity in which he was, and in a sense the agent of his principal, the bank, to enter into a usurious contract with himself
In the opinion the court determined the question that, while the note referred to was tainted with • usury, the relations of plaintiff Gund to the bank were such that he could not avail himself of the plea of usury, and thereby escape payment of lawful intei'est; that, while a court of equity will not enforce a usurious contract by compelling the payment of usury, it will require a party occupying the fiduciary relation to the payee which was occupied by plaintiff in this case to do equity by paying lawful interest; and that as plaintiff had full knowledge of the items which went to make up the consideration for the note
After the case was. remanded, through the efforts of plaintiff’s attorneys, Hayes was induced to intervene in the case, and an attempt was made by plaintiff to try again the question of usury which had been disposed of by the former decision of this court. We do not think that Hayes was a necessary or even proper party after the case had been remanded. His going into the case at that time could not in any manner affect the issues which had already been determined. If plaintiff desired him to be a party in the case, he should have made him a party in the first instance. He could not wait until after the issues had been fully determined by this court, and then, after the case was remanded with specific directions, bring him into the case for the purpose of trying again issues which had already been finally adjudicated, and which it is clear would have been adjudicated in precisely the same manner they were, even if Hayes had been a party on the first hearing. The fact that the district court permitted Hayes to intervene is immaterial, however, for the reason that his intervention was not permitted in any manner, to influence the court in its findings and judgment.
An examination of paragraph 4 of the decree entered by the court shows a clerical error of $1,000. In that paragraph the court makes specific findings of the amount
Complaint is made by plaintiff and cross-appellant, Hastings, that the court erred in paragraph 11 of its decree in charging them with interest at the rate of '2 per cent, per annum for not depositing the funds in bank at interest pending the litigation and after a supersedeas bond had been filed. We think the court was right. It appears from the evidence that the money had been on deposit in three banks, one of which was paying 3 per cent., and each of the others 2 per cent., but that plaintiff and cross-appellant, Hastings, after they obtained the custody of the funds, placed them in a bank of which plaintiff was a stockholder, without interest. We think the district court was fully warranted in holding that they were “negligent” in thaf particular. The bank had been paying
Complaint is made by appellants, Lane and Sands, of paragraph 10 of the court’s decree, in which it allowed the trustees, Hastings and Gund, $500 and $250, respectively, for services in connection with the liquidation of the bank, the contention being made that they had not acted in good faith in relation to the attempt of plaintiff to escape payment of a large portion of the note in controversy. From the amount allowed by the court it is evident that no compensation was allowed to either of these trustees for any service performed or money expended on account of this litigation. While we perfectly agree with the contention of counsel for appellants, Lane and Sands, that the directors would not be entitled to any compensation of that character, we are not prepared to hold that the trustees would have to perform the large amount of work and bear the responsibility of closing up the affairs of the bank without just compensation therefor. No question is made that the amount allowed by the court is unreasonable, and its findings in that particular should be affirmed.
Complaint is also made by appellants, Lane and Sands, that the court erred in paragraph 14 of its decree in refusing to make them an allowance for attorneys’ fees in this cause. At the oral argument we were inclined to think that in this the court had erred; but upon more mature deliberation and a careful examination of the record we have reached a different conclusion. The ap
We therefore recommend that the cause be remanded to the district court, with directions to correct paragraph 4 of its findings by changing the total footing from $5,335.-50 to $6,335.50, and to correct the other findings in accordance therewith, and to compute interest upon the net amount found due from plaintiff, Henry G.und, on December 31, 1901,. to the date of the decree which it shall enter, at the rate of 7 per cent, per annum, and enter its decree therefor, and that in all other respects the decree, of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the cause is remanded to the district court, with directions to correct paragraph 4 of its findings by changing the total footing from $5,335.50 to $6,335.50, and to correct the other findings in accordance therewith, and to compute interest upon the net amount found due from plaintiff, Henry Gund, on December 31; 1901, to the date of the decree which it shall enter, at the rate of 7 per cent, per annum, and enter its decree therefor. In all other respects the decree of the district court is affirmed.
Judgment accordingly.