Continental Building & Loan Association of Kansas City, No. 2 v. Aulgur
| Decision Date | 03 March 1898 |
| Docket Number | 7861 |
| Citation | 74 N.W. 405,54 Neb. 115 |
| Parties | CONTINENTAL BUILDING & LOAN ASSOCIATION OF KANSAS CITY, No. 2, v. ANDERSON AULGUR |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before TIBBETS, J. Affirmed.
AFFIRMED.
Cobb & Harrey and Morning & Berge, for plaintiff in error.
Charles E. Magoon, contra.
The Continental Building and Loan Association of Kansas City, No 2, has filed here a petition in error to review a judgment pronounced against it in favor of Anderson Aulgur by the district court of Lancaster county.
1. The first argument is that the verdict is not sustained by sufficient evidence. Aulgur set out in his petition nine causes of action. It is unnecessary to pay any attention to the ninth cause of action, as the defendant below offered to confess judgment thereon. The other eight causes of action were alike, and, without quoting the petition, they were substantially this: Aulgur was the owner of eight houses and lots in Abbott & Irvine's Addition to the city of Lincoln, had sold these eight properties to eight different persons, and as a part consideration of the purchase price was to accept a note from each vendee of $ 650, secured by mortgage upon the real estate sold. Aulgur then contracted with the building association, by which it agreed to take the mortgages of Aulgur's vendees. Each vendee executed his note to the building association for $ 650 and secured the payment of the note by a mortgage upon the property sold to such vendee by Aulgur, and thereupon the building association paid to said Aulgur $ 575 on each of said mortgages. This suit was brought by Aulgur to recover the $ 75 which he claims remain unpaid to him from the building association on each of said mortgage debts, or a total amount of $ 600. The building association answered, first, that it had paid on each of said mortgage loans the $ 575 and agreed to pay him the remaining $ 75 on each of said loans when each mortgagor had paid on his loan a sufficient amount of money to reduce it from $ 650 to $ 575, and that none of said mortgagors had paid said amount on his loan. The second defense of the building association was that Aulgur's vendees were carpenters and were at work for him, and that he agreed with the building association that instead of paying his vendees for their work he would retain out of their wages sufficient sums of money to pay what would become due on their mortgages and pay these sums to the building association until each mortgagor had reduced his debt to the building association $ 75, and then it, the building association would pay said $ 75 on each of said loans to Aulgur; and that Aulgur neglected to withhold the wages of his men and pay them to it, the building association, and that the mortgagors themselves had not reduced their mortgage debts to $ 575 each. It will thus be seen that the building association's answer amounted to a confession and avoidance of the cause of action set up by Aulgur in his petition, and the building association assumed the burden of establishing the two defenses pleaded by it. We cannot say that the jury was wrong in reaching the conclusion that the building association had not established either of these defenses. The second defense interposed, to say the least, is very peculiar, and it may be doubted if it amounts to a defense. The nature of the building association's answer disposes of its contention here that there is a variance between the pleadings and proof of Aulgur.
2. The second assignment of error relates to the action of the district court in permitting a receipt to be introduced in evidence on the trial. It appears that whatever agreement was entered into between Aulgur and the building association was made on behalf of the latter by one of its directors, named Ripley, and he testified in the case on the trial on behalf of the building association to the effect that while the building association took mortgages from each of Aulgur's vendees for $ 650 the company was only to pay down $ 575 to Aulgur for each of said mortgages, and to pay the remaining $ 75 on each of said mortgages only when the mortgage debts had been reduced by payments made thereon $ 75 each; that he was positive that this was the agreement between him and Aulgur, because, as an agent of the building association, he had no authority to pay in cash more for the mortgages purchased. On cross-examination he admitted that he was a director of the association at that time, and was at the time of the agreement between the company and Aulgur. His examination then proceeded as follows:
Q. In what capacity are you employed by them?
A. The question is, what do you mean by capacity?
Q. Don't you know what is meant by capacity?
A. No, sir, I do not; but I can tell you that I am one of the directors of the company.
Q. Yes, sir; what else?
A. What else what?
Q. What else are you in this company?
A. I am not anything, only a man. * * *
Q. You say you were out here examining property. Were you examining property as a director?
A. No, sir; I was examining the property as a man.
Q. Well, as a director of this company?
A. No, sir.
Q. You didn't have any relation with this company at that time?
A. Well, I won't answer that question.
Q. Well, did you examine this property?
A. I examined that property.
Q. What for?
The Witness: What is the question?
(Question read.)
A. I examined it to find out its value.
Q. For what purpose did you desire to ascertain its value?
A. To report to the board its value.
Q. To what board?
A. To the board of directors of the Continental Building & Loan Association of Kansas City.
Q. And how many are there in that board?
A. I don't know.
Q. Is there not a committee of that board...
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