Cheney v. Eberhardt

• Decision Date: 31 January 1879
• Citation: 1 N.W. 197,8 Neb. 423
• Parties: PRENTIS D. CHENEY, APPELLANT, v. JOSEPH C. EBERHARDT, APPELLEE.
• Court: Nebraska Supreme Court

8 Neb. 423

1 N.W. 197

PRENTIS D. CHENEY, APPELLANT,

v.JOSEPH C. EBERHARDT, APPELLEE.

Supreme Court of Nebraska.

January Term, 1879.

Appeal from Nemaha County.

J. H. Broady, for appellant.

T. B. Stevenson, for appellee.

LAKE, J.

--The action in the court below was for the foreclosure of a mortgage, and resulted in a general finding of all the equities in favor of the defendant Eberhardt, who alone had answered, and a judgment in pursuance thereof, dismissing the case. The plaintiff comes here by appeal.

The defense interposed by the defendant in his answer is, in substance, that the entire consideration of the several notes secured by said mortgage was usurious interest exacted by the plaintiff in making to him a loan of money. It is alleged, and clearly established by the proofs, that in this transaction, while Eberhardt actually obtained only $485, he gave in return securities as follows, viz: one note payable in five years for $500, and five interest notes for $50 each, payable in one, two, three, four and five years respectively, and all secured by mortgage on the real estate in question. Also five other notes for $35 each, payable in one, two, three, four and five years respectively, which were likewise secured by a second mortgage on the same premises, thus making the actual cost to the borrower for the money obtained by him something over seventeen per cent per annum for each year of the term which the loan had to run. As to these facts there is no dispute.

It also appears that the $500 note and the five $50 notes, which were taken nominally to one Byron Murray, have been fully paid, as have also two of the $35 notes. The $35 notes and mortgage were given directly to the plaintiff, Prentis D. Cheney. The plaintiff endeavors to maintain the legality of this loan on the theory that he was employed by Eberhardt to negotiate it, and that throughout the entire transaction he acted solely as his agent, and not as the agent of Murray, from whom he claims to have obtained the money after much effort. The five $35 notes, amounting to seven per cent. per annum for the whole term of the loan, he claims were given as the agreed compensation he was to receive for obtaining the loan. It must be admitted that the transaction was so shaped and hedged about, as to make this claim appear to the superficial observer somewhat plausible; but we think enough is brought to light to show very clearly that if the money received by Eberhardt had come from Murray, he had confided the business of loaning it to the judgment and discretion of Cheney, holding him responsible for the safety of its investment. This much, we think, is plainly inferable from the...