Dell v. Oppenheimer
| Decision Date | 08 January 1880 |
| Citation | 4 N.W. 51,9 Neb. 454 |
| Parties | SAMUEL W. DELL, APPELLEE, v. ISAAC OPPENHEIMER AND ROSA OPPENHEIMER, APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL by defendants from a decree of foreclosure rendered against them in Lancaster county district court, POUND, J presiding.
Mason & Whedon, for appellants, cited Montany v. Rock, 10 Mo. 506. Wiley v. Hight, 39 Mo. 130. Willie v Green, 2 N.H. 333. Shireley v. Wilty, 19 Ill 623. Mitchell v. Doggett, 1 Fla., 365. Matlock v. Mallory, 19 Ala. 694. Richards v. Kountze, 4 Neb. 200, and authorities there cited.
Burr & Stein, for appellee, cited Richards v. Kountze, 4 Neb. 200. Rosa v. Doggett, 8 Neb. 48. Bell v Coleman, 2 C. B., 284. Busby v. Finn, 1 Ohio State, 409. Carson v. Ingals, 33 Barb., 657.
This is an action to foreclose a mortgage, and the only defense 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 defendants agreed to give and pay, interest at the rate of fifteen per cent per annum on said note and mortgage; and that 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 fifteen per cent per annum, and that the illegal 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 twelve 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 twelve 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 note matured, was twelve and a half 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 fifteen 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 their last installment of interest, endorsed on the note, the amount of which, although not disclosed by the endorsement, it is clearly shown was fifty-two dollars and fifty cents. This endorsement, like each of the other eight, appearing on the note, being simply an acknowledgement of the payment of "six months' interest," without mentioning the amount.
Opposed to these two witnesses, who testify positively and with great particularity--the first one as to the terms of the original loan and the subsequent extension, and both of...
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