65 Neb. 632 | Neb. | 1902
This is a suit brought in the district court for Chase county by appellant Harrison National Bank against Cyrus O. Austin, and others, to foreclose a mortgage given by Austin to C. C. Burr on May 31,1890, due June 1,1895, which note and mortgage was by Burr indorsed, assigned and delivered to appellant long before maturity. The petition is in the usual form. The answer admits the execution and delivery of the note and mortgage, and pleads payment of the sum by Edward Kuse,- who purchased the premises subject to the mortgage to Burr, who, it is alleged, was the agent of appellant bank, and that such money had been paid by Burr to the bank. To this answer was filed by way of reply a general denial. Trial was had, which resulted in a finding and judgment for appellee Kuse, holding that the note and mortgage had been satisfied by the payment to Burr, and decreeing the mortgage to be no lien upon the premises. The case is brought to this court on appeal by the Harrison National Bank, and the only ques
It is disclosed by the record that appellee Kuse paid to C. C. Burr, on the 7th day of January, 1893, long before the note was due, the face of the note and mortgage, Avitli interest accrued up to that time. Burr executed a release in satisfaction of the mortgage, Achich he delivered to appellee, who placed it of record .in Chase county. It is clearly established by the evidence that C. C. Burr was the agent for appellant in the matter of negotiating farm loans in Nebraska, and that during the time he acted as such agent, he placed farm loans upon land in various counties in the state to a sum amounting to about $250,000. The method which seems to have prevailed in the transaction of the business betAveen Burr and appellant Avas as follows: Appellant, by J. M. Sharon, its cashier, would write a letter to Burr, directing him to send them a certain amount of farm loans; e. g., from three to ten thousand dollars’ worth. Agents for Burr in different counties in the state, on being notified to do so, Avould take applications for farm loans, and send them to Burr at Lincoln. Such as were satisfactory to him Avere accepted, and he would thereupon prepare notes and mortgages to be sent to the agent to be signed and executed by the borrowers. The mortgage, when executed, would be placed of record, abstracts prepared, and the note and mortgage of the borrower, and the abstract showing the recording of the mortgage would be forwarded to Burr, who Avould send the papers, accompanied by a sight draft, through the First National Bank at Lincoln to appellant at Cadiz, Ohio. The testimony shows that so far as the business agency of Burr with appellant is concerned, the former did not take these applications for loans and make the loans thereon except upon orders coming to him from appellant. All of the business was transacted by Burr, and while as appears from the letters written by the officers of appellant bank, Burr was admonished to take only good, first-class farm
The transactions betAveen Burr and appellant amounted to the sum, it is claimed, of $250,000, and extended over a period of many years; at least from the spring of 1888, up to the latter part of 1894, and for a period of about a year after the loan in question was paid. Sometimes, before the coupons upon the loans handled by Burr came due, he Avould send out a notice to the mortgagors, notifying them of the amount of interest, and the maturity of the same, and request prompt remittance to him at Lincoln. The same course was folloAved at the maturity of the principal notes. There seems to have been no correspondence and no business connections of any description betAveen the borroAvers of the money and appellant, but Burr seems to have had exclusive charge of the loan business in Nebraska for appellant. Burr kept an open account with appellant bank in the name of J. M. Sharon, its cashier, which account he credited with all coupons and principal notes collected, and in which he charged appellant for all items remitted. Burr testified that he collected more than $75,000 in the manner indicated, all of which belonged to appellant. When mortgages became due and Avere not paid, Burr, in many instances, proceeded to foreclose, and took- title in his own
In Burr’s testimony, he stated that he had received as many as three thousand letters from the officers of appellant bank, regarding the loan business being transacted for them by him. A number of these letters appear in the record, among which is the following, which is set out in order to explain the character of the business relations which appear to have existed between Burr and appellant: -
“Cadiz, Ohio, Apl 21st, 1894.
“G. G. Burr, Esq., Lincoln, Nebr.- — Dear Sir: Your favor of the 17th inst., is received, containing New York draft for $36, which pays the balance due on the Thos. Murray $400 loan, collected by you, and I enclose you the note, mort., rel. and abst. in same.
“You say in payment of balance due on Murray and the Misner loans. If you Avill refer to my letter of April 13, you will see that I said balance due on the Murray loan $36, and balance due on the Misner loan $20, making $56 on the two. I see this bal. should be'$61.40. The $122 credit reported was part of the T. D. Moulton $250 note. Moulton has not yet paid all of this note.
; “On another sheet I enclose you list of the loans you collected and showing credits on the same. [The accompanying list shoAving seventeen loans which had been collected by Burr, and payments credited thereon.] * * *
“Yours truly, [signed] J. M. Sharon, Gas.”
Prom the correspondence in the record, and from other testimony, it is quite clearly established that Burr was permitted by appellant to manage these loans, collect both principal and interest, in all respects as though they were his own, appellant having apparently neither knowledge
It appears that the findings and judgment of the trial court are sustained by sufficient competent evidence, and are right, and it is, therefore, recommended that the same be affirmed.
By the Court: For the reasons stated in the foregoing ■opinion, the judgment of the district court is
Affi'rmed.