Am. Bldg. & Loan Ass'n v. Mordock

• Decision Date: 20 February 1894
• Citation: 58 N.W. 107,39 Neb. 413
• Court: Nebraska Supreme Court
• Parties: AMERICAN BLDG. & LOAN ASS'N v. MORDOCK.

39 Neb. 413

58 N.W. 107

AMERICAN BLDG. & LOAN ASS'N

v.MORDOCK.

Supreme Court of Nebraska.

Feb. 20, 1894.

Syllabus by the Court.

1. The ruling of the trial court, sustaining objections to questions and answers in a deposition offered to be read at the trial, and excluding the testimony from the jury, examined, and held correct, and no error in such action.

2. Where erroneous evidence is admitted by a court, and in the instructions to the jury such evidence is withdrawn by the court from their consideration, held, that such withdrawal by the court cures the error committed in the admission of the evidence.

3. The refusal of a trial court to give to the jury instructions asked by parties to the case, when instructions already given by the court on its own motion embody, though in different phraseology, the substance of instructions asked, held no error in such refusal.

4. “Objections to instructions to a trial jury will not be noticed by the supreme court, unless the attention of the trial court is first called to them by the proper exceptions taken at the time the instructions were given.” Warrick v. Rounds, 17 Neb. 412, 22 N. W. 785.

5. Questions of fact are to be decided by the trial jury, and a verdict will not be set aside, on the ground of a want of sufficient evidence to support it, unless the want is so great as to show that the verdict is manifestly wrong. Sycamore, etc., Co. v. Grundrad, 16 Neb. 529, 20 N. W. 832;Warrick v. Rounds, 17 Neb. 412, 22 N. W. 785.

Error to district court, Clay county; Morris, Judge.

Action by Dwight Mordock against the American Building & Loan Association. There was judgment for plaintiff, and defendant brings error. Affirmed.J. L. Epperson and Chas. H. Epperson, for plaintiff in error.

Thos. H. Matters, for defendant in error.

HARRISON, J.

The defendant in error (plaintiff in the court below) commenced an action before a justice of the peace in Clay county, Neb., and recovered a judgment against plaintiff in error, who appealed the case to the district court, where the plaintiff below filed a petition alleging: First. The corporate character of defendant. Second. That about the month of May or June, 1889, one James H. Brooks, agent for the defendant company, agreed to make plaintiff a loan of $350 on certain property in the town of Fairfield, Clay county, Neb., but stated that, in order to procure the loan, it was necessary for plaintiff to become a member of the defendant company; that plaintiff entered into the agreement for the loan, and became a member of the company, receiving a certificate of stock for six shares of $100 each. Third. That, by one of the conditions of the certificate of stock, the plaintiff was allowed to return the certificate to the company at any time after one year from its date, and on so doing the company bound itself to repay to him all the several sums of money he had paid to it, with one-fourth the accrued profits upon the stock; that plaintiff was required to pay 60 cents per share on or before the 24th day of each and every month, for the period of one year; that plaintiff made all of such payments, as required by the contract; that defendant refused to make the loan, and also refused, upon the presentation, for cancellation, of the stock, at the expiration of the year, to pay the amount of money paid it by the defendant, viz. $52.20. The certificate of stock was attached to the petition as an exhibit, and made a part of it. The plaintiff prayed judgment in the amount of $52.20 and costs. Defendant company, for its answer, denied each and every allegation of the petition, except those expressly admitted; expressly denied the authority of James H. Brooks to promise plaintiff, for the company, a loan to plaintiff by the company; and pleaded that he was expressly forbidden to promise loans to any one, and that plaintiff knew of the limitation of the authority of Brooks as agent for the company. Defendant admitted that it was a corporation duly organized under the laws of the state of Minnesota; admitted that on June 24, 1889, it issued a certificate to plaintiff for six shares of its stock; admitted that payments of 60 cents per month per share were required to be made until the maturity of the stock, or until withdrawal; admitted the application by plaintiff for a loan, and that it was refused or rejected; admitted the application by plaintiff for withdrawal, and its refusal. Defendant further pleaded that plaintiff had made two applications for loans,--one August 19, 1889, and one November 2, 1889,--and in each application agreed to pay all the necessary expenses incident to the securing of the loans; that defendant procured appraisals of the property offered as security for the loans to be made, at an actual and necessary expense in each instance of $3.50, which sums the company states have never been paid by plaintiff, though often demanded of him; that, by the terms and conditions of the certificate of stock, any sums due from plaintiff were to be and were liens on the stock,--and further, on this branch of the case, pleaded chapter 34 of the General Statutes of Minnesota, alleging it to be as follows: “That it is provided by the General Statutes of the State of Minnesota (chapter 34, tit. 2, § 14) that buildings and loan associations shall at all times have a lien upon the stock or property of its members invested therein for all debts due from them to said corporation, which may be enforced by advertisement and sale in the manner provided for selling delinquent stock.” The defendant further stated: That section 5 of article 2 of the by-laws provides as follows: “If any stockholder becomes indebted to the association in any way, such debt shall be a first lien upon the stock of such member, and such stock cannot be transferred or withdrawn until said debt is paid.” That, by reason of the indebtedness of plaintiff to the company, the company had a lien upon the stock of plaintiff, who was therefore not entitled to withdraw from the association. That plaintiff had not paid dues on the six shares of said stock for the months of July to October, inclusive, in the sum of $14.40, and that, for such failure to pay dues, fines had been incurred by plaintiff in the sum of $2.40. Defendant prayed for the dismissal of the plaintiff's action, and for judgment against plaintiff for $23.80 and costs. Plaintiff replied, denying all new matter set up in the answer of defendant. On the issues formed, there was a trial to a jury, during which the court, by agreement of parties, in open court, instructed the jury orally. The jury returned a verdict for plaintiff in the sum of $40.87. Motion for a new trial was filed, argued, submitted, and overruled. The court then made an order that the plaintiff, within 10 days of the date of such order, bring into court, and place on file, the certificate of stock in controversy, for delivery to defendant and cancellation; plaintiff failing to so do, the verdict to be set aside, and a new trial ordered. This order was of date May 28, 1891. On November 19, 1891, the following entry appears: “It...