Hornstein v. Cifuno, 86 Neb. 103

Hornstein v. Cifuno

86 Neb. 103 | Neb. | 1910

Reese, G. J.

This action was instituted in the district court for Douglas county for the foreclosure of a real estate mort*104gage bn the south one-half of lot 24, in McCandlish Place, in the city of Omaha. A decree was entered in favor of plaintiff for the full amount of the note, the payment of which was secured by the mortgage, together with interest at seven per cent, per annum from ‘its date. The note was in the following form: “$400. Omaha, Neb., Jan. 4, 1807. One year after date Ave promise to jjay to the order of Liberato Varriano four hundred no-100 dollars at Omaha, Nebraska. Value received Avith interest at the rate of -per cent, per annum from - until paid. OioAanno Battista Cifuno. Marie Giuseppa Cifuno. Indorsement: Liberato Varriano, Emil Hornstein.” At the time of the maturity of the note the makers, defendants, tendered the sum of $400.25, claiming that at the time the note was given there was an oral agreement between plaintiffs assignor, the payee of the note, that no interest Avas to be charged, and the sole question presented is as to when the interest began to run. If at maturity, the tender was sufficient, and plaintiff could only recover a sum equal to the face of the note. If the note dreAV interest at the legal rate of 7 per cent, per annum from its date, the decree is correct. As is sIioavu by the copy of the note above set out, the blanks for the statement of the rate of interest and the date from which the interest would run Avere not filled in at the time of the execution of the note, and the legal effect Avould be the same as if there had been nothing Avritten or printed after the Avord “interest”, and the reading of the note Avould be to pay “interest until paid.” This would cause the debt to draw interest at the legal rate of 7 per cent, per annum from the date of the note. Salazar v. Taylor, 18 Colo. 538; Jewett v. McGillicuddy, 55 Neb. 588; Campbell Printing Press & M. Co. v. Jones, 79 Ala. 475; Bogan v. Calhoun, 19 La. Ann. 472; Dewey v. Bowman, 8 Cal. 145; 2 Parsons, Notes and Bills (2d ed.) p. 392; Eaton and Gilbert, Commercial Paper, sec. 47c; Ogden, Negotiable Instruments, sec. 48; 2 Daniel, Negotiable Instruments (5th ed.) secs. 1385, 1458; Perley, Law of Interest, p. 8; 8 Gyc. 313; 22 Cyc. 1538. It Avould *105also follow that proof of an oral modification of the written contract could not be received as against plaintiff who is an innocent purchaser of the note. In this we think the trial court did not err.

There is a contention that the answer denied plaintiff’s ownership of the note, and that therefore the burden was on him to prove the indorsement and transfer; but it appears from the answer that plaintiff’s ownership is admitted. It is alleged that the tender of the $400 was made to one Mancuso on the 4th day of January, 1908, who was in possession of the note, and on the 14th day of January of the same month the said Mancuso “for himself and plaintiff herein, for Avliom he was acting as agent at that time, refused to cancel the mortgage and receive the $400”, etc. This must be held as an admission of plaintiff’s ownership.

We find no error in the decree of the district court, and it therefore is

Affirmed.