92 Neb. 829 | Neb. | 1913
Plaintiff brought suit in the district court for Olay county, to foreclose a mortgage upon lots 8 and 9, in block 12, in the original town of Ong, in said county. From a decree finding that the note, which the mortgage was given to secure, had been paid and dismissing plaintiff’s suit, plaintiff appeals.
The petition is in the usual form. It alleges the execution of the note and mortgage by defendants David W. Hale and wife; the subsequent sale of the premises by the Hales to one McCrain, who. conveyed to one Nearhood, who conveyed to one Arthur B. Smock; that the Exchange Bank of Ong is the record holder of a mortgage given to it by defendant Smock. Smock and his wife and the bank were made defendants. The bank answered separately, setting up its mortgage from Smock, and prayed that, in case a decree of foreclosure is entered in favor of plaintiff, its mortgage should be taken into account. The defendants Smock answered, alleging ownership of the premises by defendant Arthur B. Smock; that he purchased the same subject to two mortgages from his grantor Nearhood to the defendant bank. Further answering, it is alleged that, at the time the note and mortgage set out in plaintiff’s petition were given by the defendants Hale, J. O. Walker of Ong represented the plaintiff in the taking of said note and mortgage, and thereafter continued to represent plaintiff in the collection of the interest, and was authorized by plaintiff to
J. O. Walker was plaintiff’s nephew, and cashier of the Exchange Bank of Ong, of which his father, plaintiff’s brother, was president. It appears from the evidence that J. O. Walker was the active manager of the bank and liad the unlimited confidence of everybody in Ong and surrounding country. He died on or about December 17, 1908, and it whs then discovered that , through his skilfully manipulated and systematic dishonesty a large number of persons, among them some of his most trusting relatives -and friends, were defrauded out -of large sums of money, aggregating many thousands of dollars. One of his victims, whom he had deceived for many years, and who must now suffer the loss of a large sum of money by reason of the confidence which he placed in his nephew, is the plaintiff in this case. J. O. Walker seems -to have
The first point urged by plaintiff for a reversal is that, “if J. O. Walker was the agent and representative of the plaintiff and he in fact received and failed to remit to the plaintiff the moneys alleged to have been paid him, then upon his death the plaintiff would become his legal representative,” and that the testimony of Hale and McCrain as to conversations and transactions with J. O. Walker, who is deceased, is barred under section 329 of the code, which provides: “No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness, unless the evidence of the deceased person shall have been taken, and read in evidence by the adverse party in regard to such transaction or conversation, or unless such representative shall have introduced a witness who shall have testified in regard to such transaction or conversation.” No time need be spent upon this contention for three reasons: (1) The plaintiff is not the representative of the deceased. The deceased in his lifetime was the representative of plaintiff. (2) Plaintiff himself testified to his correspondence and dealings with J. O. Walker in reference to business generally and the note and mortgage in suit in particular. (3) The point is decided adversely to plaintiff’s contention in German Ins. Co. v. Frederick, 57 Neb. 538, where we said: “Objection is made to the introduction of evidence as to the transactions of the insured with the agent, on the ground that the agent was dead at the time of trial. This fact seems to have been assumed, but it Avas not proved. HoAvever, the statute makes such testimony incompetent only where the adverse party is the representative of the deceased. Here that Avas not the case. The deceased in his lifetime had been the representative
That payment of the full amount of the debt represented by the note and mortgage in suit was made to J. O. Walker is not disputed. The only question therefore to be determined in this case is, was J. O. Walker, at the time the payments were made to him, the general agent of the plaintiff, at Ong, for the purpose of receiving such payments, and were Hale and McCrain justified, at the time they made the payments to him, in believing that he was such general agent?
It is argued that this mortgage was given directly to plaintiff; that it was negotiated through J. O. Walker; that for a number of years, and during the times in controversy, J. O. Walker was cashier of the Exchange Bank, and that the fact, if it is established, that J. O. Walker acted for plaintiff in placing the loan and in the collection of the interest would be insufficient proof of his agency to collect the principal. It is contended generally that the relation of principal and agent between plaintiff and J. O. Walker did not exist; that they were doing business at arm’s length; that they were engaged in the purchase and selling of securities, and at the same time J. O. Walker, as cashier of the bank, was interested in furnishing money to the customers of the bank, and that he was availing himself and his customers of the plaintiff’s funds for these purposes; that plaintiff testified that he and J. O. Walker did not always pull together; that plaintiff returned papers sometimes that did not suit him; that J. O. Walker did not have entire control of the papers; that plaintiff did not permit him to do as he pleased; that authority was given with reference to eacli particular matter as it arose and no general authority was given; that “'plaintiff did not know that J. O. Walker was conducting matters in a criminal way until after the transactions important to this case had occurred.”. The evidence shows that plaintiff made over 100 loans through
The testimony of plaintiff himself shows that he kept a considerable sum of money on deposit in the bank, of which J. O. Walker was cashier, which money was kept there for the purpose of making Nebraska loans. As money would be paid in, which J. O. Walker reported to
The law applicable to a state of facts as above outlined is well settled in this jurisdiction: First Nut. Bank v. Rid path, 47 Neb. 96; Thomson v. Shelton, 49 Neb. 644; Holt v. Schneider, 57 Neb. 523; Harrison Nat. Bank v. Austin, 65 Neb. 632; and Pine v. Mangus, 76 Neb. 83, 85, where we said: “The appellee claims that the loan company had no authority to extend the time for the payment- of $500 of the principal, nor to collect any part of the principal or interest at any time; and in his deposition states that no such authority existed. But we take into consideration the facts testified to by him, and other evidence showing the relationship which existed between him and the loan company, rather than his opinions or conclusions as to their relations.” What we said there we repeat here. The facts testified to by plaintiff and the character of the relations existing between himself and J. O. Walker, as shown by an abundance of evidence, completely outweigh the statement made by plaintiff that no authority existed or had been given to J. O. Walker to collect the principal of any of his loans.
The situation of the plaintiff, who is undoubtedly an honorable business man, is unfortunate; but if the law Avere otherwise than herein declared the situation of the defendants, and others similarly situated in and about Ong, would be deplorable.
The judgment of the district court is not only right, under the law, but it is just.
Affirmed.