54 Neb. 398 | Neb. | 1898
This action was instituted by the appellant, hereinafter designated the company, to reform the interest coupons attached to a bond and to foreclose a real estate mortgage which had been executed and delivered to secure the payment of the amount of a loan to the mortgagor, the contract of loan being evidenced by the bond and mortgage in suit. It was of the allegations of the petition filed
“Plaintiff, by its agents, represented to these defendants, more especially to the defendant Paul Ignowski, at the time said instruments were executed, and some time previous thereto, that he was obtaining from the plaintiff a loan at the rate of five and one-fourth per cent per annum, and that in consequence of the said representations defendants borrowed the sum of $600 on or about November 1, 1890, at the said agreed price of five and one-fourth per cent per annum, payable annually, for the term of five years.
“Third — That these defendants have promptly paid the interest on the said mortgages, bonds, and notes at the rate of five and one-fourth per cent per annum as agreed, said five and one-fourth per cent per annum being made up of three and one-fonrth per cent on the first mortgage bond and two per cent on the second mortgage. The said amount paid annually has been the sum of $31.50, and these defendants hold a receipt in full from plaintiff, dated October 31, 1891, for the interest due oh the said loan.
“Fourth — Plaintiff has accepted the interest payments of $31.50 made by these defendants annually.
“Fifth — The rate of interest in the mortgage, of which ‘Exhibit. 13’ attached to plaintiff’s petition is a copy, is ‘6-Y’per cent per annum,’ the figures ‘6-£’ were inserted*400 therein by plaintiff either in error or else fraudulently for the purpose of deceiving these defendants, who are illiterate and do not well understand the English language.”
A tender to the company of the amount of taxes paid by it was pleaded, and each and every allegation of the petition of which the answer did not contain an admission was denied. In the reply each and every statement of new matter of the answer was either generally or specifically denied. A trial of the issues resulted favorably to the defendants and the company has appealed to this court.
It is disclosed by the evidence that Paul Ignowski, of defendants, made application to the company for a loan through a banker at Ashton, Nebraska, who represented the company, or at least received applications for loans, forwarded them to it, and, if approved, attended to the execution of the papers and completion of the loans. Ignowski’s application was in writing, in the usual form, and for a loan in the sum of $600, with interest at eight and one-half per cent per annum, payable annually. The necessary papers, bond, coupons, notes, and mortgages were prepared at the home office of the company and forwarded to the banker in Ashton. In regard to their preparation and the mistake claimed to have been made the treasurer of the company testified as follows:
Q. Have you any personal knowledge and had you any supervision of the making out of these papers?
A.’ I have and did.
Q. Tell what you know about the making out of these papers.
A. After the loan committee had decided to renew the loan, I made out a memoranda for one of our clerks to make up the.papers,, dividing the amount to be paid annually, eight and one-half per cent interest, by ordering a bond prepared for the principal and coupons for annu il interest thereon at the rate of six and one-half per cent*401 and the balance of two per cent per year was included in five notes of $12 each, maturing concurrent with the interest coupons upon the principal bond. Upon endeavoring to negotiate this new loan to an eastern party we found that through a clerical error the five coupons for the annual interest, instead of being made up at $39 each, as recited in the mortgage and bond, were only for $19.50 each, which is semi-annual interest instead of annual interest. This error probably occurred from the fact that the clerk who makes our papers makes most of her papers at semi-annual interest, and she, by mistake, figured the semi-annual rate instead of the annual interest, as she was instructed to do.
Q. State whether or not these several coupons correctly represent the amount of annual interest agreed by the defendant to be paid on this principal bond.
A. They do not.
Q. State what the correct amount of each of these several coupons should be in order to represent the correct amount of interest agreed by the defendant to be paid on this .principal bond?
A. They should have been $39 each.
The sole contention is that the trial court should have decreed a reformation of the coupons so that each called for the payment of $39 insteád of $19.50. We are satisfied that the evidence established the mistake on the part of the company, and that the same occurred by reason of a lack of care by it, or its employé who prepared the loan papers.
It further appears in evidence that Ignowski had, while negotiating with the appellant company, been to St. Paul, Nebraska, and there made application to a loan agent, which had been approved, the rate of interest contracted for being seven per cent per annum. When the bond and mortgage in suit arrived at Ashton, Ignowski was informed that they had been received and that they showed that he was to be furnished the money and a very low rate of interest was exacted, or five and one-
Affirmed.