DeLl v. Oppenheimer

• Decision Date: 08 January 1880
• Citation: 9 Neb. 454,4 N.W. 51
• Parties: SAMUEL W. DELL, APPELLEE, v. ISAAC OPPENHEIMER AND OTHERS, APPELLANTS.
• Court: Nebraska Supreme Court

9 Neb. 454

4 N.W. 51

SAMUEL W. DELL, APPELLEE,

v.ISAAC OPPENHEIMER AND OTHERS, APPELLANTS.

Supreme Court of Nebraska.

Filed January 8, 1880.

Appeal from Lancaster county.

Mason & Whedon, for appellants.

L. C. Burr, for appellee.

LAKE, J.

This is an action to foreclose a mortgage, and the only defence interposed is that of usury. The court below found from the evidence that the original contract of loan was not usurious, “but that after the maturity of said note and mortgage the plaintiff agreed to take and receive, and the defendant agreed to give and pay, interest at the rate of 15 per cent. per annum on said note and mortgage; and in pursuance of said last named agreement the defendant did pay and the plaintiff received interest on said note and mortgage at the rate of 15 per cent. per annum, and that the legal interest so paid and received amounts to the sum of $52.50.” Upon these facts the court, following the decision in the case of Richards v. Kountze, 4 Neb. 200, found as matter of law “that the plaintiff is entitled to interest on said note and mortgage at the rate of 12 per cent. per annum, and that the defendants are entitled to be credited on said note and mortgage, as payments, the amount of said illegal interest,” and rendered judgment accordingly.

In this application of the law to the facts as found the court was clearly right, for the original contract, if bona fide, and wholly free from the taint of usury, would not be invalidated by a subsequent agreement to pay interest at an usurious rate after the note had matured. Richards v. Kountze, supra. It only remains, therefore, to ascertain whether the finding of facts, in view of the evidence, can be upheld.

By the terms of the note and mortgage the interest to be paid was fixed at 12 per cent. per annum, payable semi-annually. The defendants, however, in their answer allege that the rate actually agreed upon, and which they paid until the the note matured, was 12 1/2 per cent.; and that after its maturity a new arrangement was made, whereby, in consideration of a further indefinite extension of the time of payment, the interest should be increased to 15 per cent., and that several semi-annual payments were made at that rate. These allegations of the answer are fully sustained by the testimony of the defendant Isaac Oppenheimer, with whom the contract, whatever it may have been, was made, and that of Moses Oppenheimer, through whom the defendants paid the last instalment of interest indorsed on the note, the amount of which, although not disclosed by the indorsement, it is clearly shown was $52.50; this indorsement, like each of the other eight appearing on the note, being simply an acknowledgment of the payment of “six...