Forbes v. Thomas
| Decision Date | 30 November 1887 |
| Citation | 22 Neb. 541,35 N.W. 411 |
| Parties | FORBES v. THOMAS. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where the testimony is conflicting, and pretty evenly balanced, the finding of a trial jury thereon will not be disturbed, even if the testimony seems to preponderate in favor of the losing party.
Evidence examined, and held to support the finding of fact necessary to support the verdict.
Error without prejudice will not require the reversal of a judgment.
Where A., being indebted to B. in the sum of $10,000, procures C. to execute to B. a note and mortgage for $2,650, with the statement that B. would furnish the $2,650 to C., as a loan, the proceeds of such loan to be applied to the payment of a mortgage on the real estate included in the mortgage to B., amounting to over $1,200, and $900 thereof to be applied to the payment of a note for that amount held by A. against C., and another, the remainder to be paid in cash to C., but A. concealed from C. all knowledge of indebtedness to B., and, instead of procuring $2,650, procured only $1,000, and applied the $1,650 to the payment of his own indebtedness to B. without the knowledge or consent of C., and at the time of making the contract A. was not the owner of the $900 note, and could not deliver it to C., having transferred it to another long prior thereto, as collateral, to secure an unpaid debt, it was held that the concealment of the indebtedness from A. to B., and the appropriation of the money thereon, and the concealment of the fact that the $900 note had been transferred and could not be delivered, were a fraud upon C., and created a liability which a discharge in bankruptcy, under the provisions of the bankrupt law of the United States then in force, could not affect.
In such case the measure of C.'s damages in an action against A. would be the $1,650, and legal interest thereon, notwithstanding the fact that by the increased mortgage liens on C.'s land he was unable to borrow sufficient to discharge them, and by subsequent foreclosure proceedings the land was sold, and C.'s title destroyed.
In such case the refusal of the trial court to permit A. to testify that in the transaction he acted in good faith, and intended to surrender the note, and believed he could do so, if error at all, would be without prejudice, the notes having never been surrendered or tendered.
The cause of action occurred in 1875. In 1877 plaintiff in error, who was in business in O., in this state, changed his place of business to D., in Dakota territory. From that time until 1880, his family resided in O., when his wife joined him in Dakota, and remained there about four months. In 1881 his family all joined him in Dakota. The principal part of the time from 1877 until 1881, his family resided in the place occupied by him previous to his departure. He occasionally visited O., but did not make that his usual place of abode. Held, that these facts, together with other circumstances and testimony submitted to the jury, were sufficient to sustain the finding that “his usual place of residence” was not in O., and that the statute of limitations did not run in his favor.1
Error to district court, Douglas county; NEVILLE, Judge.
George W. Doane and H. D. Estabrooke, for plaintiff.
J. L. Webster, for defendant.
This action was instituted in the district court of Douglas county, by defendant in error against plaintiff in error, by which he sought to recover the sum of $10,000 damages resulting from fraudulent representations and conduct of plaintiff in error. The cause of action stated in his petition is that, on the twenty-third day of April, in the year 1875, he was the owner in fee-simple of the W. 1/2 of sec. 15, township 16, range 12, in Douglas county, Nebraska, and that at said date there was a mortgage on the premises to one Barker, in the sum of $1,200, and interest from April 8, in the year 1872; all of which was then due and payable. That defendant in error, being desirous of paying off said mortgage to Barker, applied to plaintiff in error for a loan of $2,650, to be secured by a mortgage on the real estate;that plaintiff in error was then indebted to one William Vorse in a large sum of money, which he concealed from defendant in error, and which was unknown to him; and, to enable the plaintiff in error to cancel a part of his own indebtedness to Vorse, procured defendant in error to execute a note to Vorse in the said sum of $2,650, bearing date August 23, 1875, payable five years after date, and to secure the same to execute a mortgage on the real estate above described to Vorse, fraudulently representing to defendant in error that Vorse was advancing on said note and mortgage the full amount thereof; that plaintiff in error fraudulently represented to defendant in error that he would procure the $2,650, and out of that money pay, and cause to be canceled, the mortgage to Barker, and would surrender certain evidences of indebtedness that plaintiff in error held against defendant in error and one John Thomas, and would pay defendant in error the sum of $1,000 in cash; but that after obtaining the mortgage and note, he fraudulently did deliver the same to Vorse in payment of $2,650 of the indebtedness of plaintiff in error to Vorse, and did not pay to defendant in error the $1,000 in cash, nor cancel the mortgage to Barker, nor surrender the evidences of indebtedness held against the defendant in error; but paid Barker the sum of $785, and paid taxes on the land amounting to $215, which was all that defendant in error received from plaintiff in error for the note and mortgage of $2,650. It is alleged that defendant in error was, at the time, poor financially, and was himself unable to pay his incumbrance on the land, and, by reason of the mortgage to Vorse so fraudulently obtained by plaintiff in error, he was prevented from borrowing money on the land, and that the same was lost to him by the foreclosure of the Barker and Vorse mortgages. That, in addition to the loss of the real estate, a judgment had been rendered against him for the sum of $2,500, as a deficiency remaining after the sale of the mortgaged property. That the value of the real estate was $8,000. It is also alleged that plaintiff in error has been absent from the state for more than five years, and that he has not been within the state four years since the date of obtaining the mortgage.
Plaintiff in error, by his answer, admits the execution of the mortgage to Vorse, and the existence of the mortgage to Barker as alleged in the petition, but denies that defendant in error applied to him for the purpose of paying off the Barker mortgage; but alleges that defendant in error and one John Thomas, his brother, were at the time of the execution of the Vorse mortgage indebted to him in the sum of $1,650; that defendant in error well knew the plaintiff in error was indebted to Vorse, and that plaintiff in error applied to defendant in error and John Thomas, either to pay him the amount of their indebtedness, or secure the same in such manner as to enable him to use it in paying a part of his indebtedness to Vorse; and it was mutually agreed between them that defendant in error should execute the mortgage on the real estate as he did do; that $1,000 in money should be paid to him for the purpose of reducing the liens thereon, and that they should be afterwards paid by defendant in error; that by the execution of the $2,650 mortgage defendant in error and John Thomas paid to plaintiff in error the said sum of $1,650 due him from them, and received the benefit of $1,000 paid upon his indebtedness to Barker, and the taxes due upon the land. All allegations of fraud or concealment are specifically denied. It is admitted that he did not surrender the evidences of indebtedness held by him against the defendant in error and John Thomas, but it is alleged that they have never paid any part of such indebtedness, and have suffered no damage by reason of his failure to surrender them. It is admitted that the Barker and Vorse mortgages were foreclosed, and the land sold as alleged in the petition of defendant in error; but it is alleged that he suffered no damage thereby, as he had sold and transferred the land prior to the commencement of the foreclosure proceedings, and had no interest therein. The absence of plaintiff in error from the state is denied, and it is alleged that from the time of the execution of the mortgage to Vorse until in April, 1881, plaintiff in error had continuously been a resident of the state of Nebraska, and of the city of Omaha, and that, while he was temporarily absent a part of the time, his home was in Omaha, where his family resided, and that, during all the said time, service of summons could have been made upon him as required by law in civil actions. It is alleged that, since the date of the execution of the Vorse mortgage, certain proceedings in bankruptcy had been instituted in the district court of the United States against plaintiff in error, which resulted in his discharge from all his indebtedness, and especially from the alleged indebtedness to defendant in error, on the twenty-fifth day of April, 1879.
Defendant in error, by his reply, denies the indebtedness of himself and John Thomas to plaintiff in error, in the sum of $2,650 or any other amount; but alleges that plaintiff in error had held certain evidences of indebtedness of John Thomas, the amount of which is not known by defendant in error, but that, at the time of said transaction, plaintiff in error was not the owner thereof, but had transferred them to a bona fide purchaser for value, and that the said evidences of indebtedness were not surrendered, either to defendant in error or John Thomas, by plaintiff in error, but were still outstanding and subsisting evidences of debt against them. That, at the time of the execution of the mortgage, plaintiff in error knew that he was not the...
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