Stein v. Swensen

Decision Date20 June 1891
Citation49 N.W. 55,46 Minn. 360
PartiesLewis Stein v. Peter P. Swensen, Sheriff, and another
CourtMinnesota Supreme Court

Action brought in the district court for Hennepin county against the defendant Swensen, sheriff of the county, and David W Knowlton, to recover for the conversion of three carriages claimed by plaintiff under two chattel mortgages from H. C Vaughn & Co. Defence, that the property was taken by the defendant Swensen, as sheriff of the county, by virtue of a writ of attachment in an action brought against H. C. Vaughn & Co. by the National Bank of Commerce; that on September 15 1888, (three days after the levy,) the debtors made an assignment in insolvency to defendant David W. Knowlton, who duly elected to retain the attachment and levy for the benefit of all the creditors, and filed notice of such intention, and on November 7, 1888, was substituted as plaintiff in the attachment suit for the purpose of enforcing the attachment, and on October 15, 1888, as assignee, received the property from the sheriff. The answer further alleges that the mortgages were void for usury. After the decision of a former appeal, (44 Minn. 218,) granting a new trial after verdict for defendants, the action was again tried, before Smith, J., and plaintiff had a verdict of $ 986.90. The defendants appeal from an order refusing a new trial.

Order reversed.

Selden Bacon, for appellants.

S. Meyers, for respondent.

OPINION

Gilfillan, C. J.

This case was here once before on an appeal from an order denying a new trial after a verdict for defendants, and is reported in 44 Minn. 218, (46 N.W. 360.) Reference is made to the opinion therein reported for a general statement of the case. After a second trial, ending in a verdict for the plaintiff, this appeal is brought from an order denying defendants' motion for a new trial. The assignments of error are very numerous, but they may be referred to comparatively few propositions.

The loans were made in behalf of plaintiff, a non-resident of the state, by his agent, Henry Stein, doing business in Minneapolis, to Vaughn & Co., the assignors in insolvency of one of the defendants. The authority of Henry Stein to act in behalf of the plaintiff was shown by a letter of attorney, from which it appears that the former was vested with full power, without any restriction, to loan and collect money for plaintiff; in other words, to carry on the general business of a money-lender. Henry Stein was a general agent, in the sense that all his acts, within the general scope of his powers in that business, are presumed to be the acts of the plaintiff. The two loans in question were, respectively, for $ 500 and $ 300, each for one month, the full interest which parties may stipulate being reserved in each note. There is no dispute that Vaughn & Co., at the times of making the loans, also paid the agent in the case of the first loan $ 15, and of the second $ 9; and also paid him similar sums on subsequent renewals or extensions, for 30 days at a time, of the notes. The defendants claim that the $ 15 and $ 9 so paid the agent, though paid nominally as compensation to him for services rendered by him for the borrower, such as he had a lawful right to charge for, were in truth paid as part of the consideration for the use of the money, and that the extensions were made pursuant to the original agreement for the loans, and as a means of evading the statute. The plaintiff, on the other hand, claims that the sums so paid to the agent were bona fide paid, solely as compensation for services rendered the borrower, and that at the times of making the loans there was no understanding that there should be extensions. These opposing claims present the main questions of fact.

On the trial the notes were introduced in evidence, and on each was indorsed with a rubber stamp the extensions of it. It does not appear that the agent did anything else in the matter of the extensions than to impress these indorsements on the notes, which could hardly be deemed a service rendered the borrower, any more than an agreement for the extensions (agreement for forbearance) could be regarded a service for which a charge could be made. The defendants introduced an instrument signed by the borrower, dated the same day as the first note, and in these terms: "Agent's authority to Henry Stein, Money Broker, 324 Nicollet avenue. I, H. C Vaughn, hereby authorize and employ Henry Stein to negotiate a loan for me on chattel-mortgage security for the sum of five hundred dollars, for the period of one month from date hereof, with interest thereon at the rate of ten per cent. per annum, and agree to pay him as compensation therefor fifteen dollars; and also agree to pay him dollars for securing an extension for said loan for each and every month after maturity." On the examination of Vaughn, a witness for defendants, they asked him if there was an oral agreement, in addition to said instrument, for an extension or extensions of the notes upon payment of a commission, at the time of the original loan. As there is no device or shift on the part of the lender to evade the statute under or behind which the law will not look, in order to ascertain the real nature of the transaction; as no act, however formal, no instrument, however solemnly executed, will stand in the way of the court getting at the truth, in order to determine whether there has been an attempt to evade the law, it was competent to prove the oral agreement indicated by the question. But the question was, as to its form, objectionable, as, instead of asking for the conversation, it called for the conclusion of the witness, and was also leading; and, being objected to on those grounds, it was properly...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT