Harrison National Bank of Cadiz, Ohio v. Austin
| Decision Date | 22 July 1902 |
| Docket Number | 10,773 |
| Citation | 91 N.W. 540,65 Neb. 632 |
| Parties | HARRISON NATIONAL BANK OF CADIZ, OHIO, APPELLANT, v. CYRUS O. AUSTIN ET AL. APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Chase county. Heard below before NORRIS, J. Affirmed.
AFFIRMED.
Abbott Selleck & Lane and John S. Bishop, for appellant.
Charles G. Ryan, Charles W. Meeker and William O'Connor, contra.
KIRKPATRICK C. HASTINGS and DAY, CC. concur.
This is a suit brought in the district court for Chase county by appellant Harrison National Bank against Cyrus O. Austin, and others, to foreclose a mortgage given by Austin to C. C. Burr on May 31, 1890, due June 1, 1895, which note and mortgage was by Burr indorsed, assigned and delivered to appellant long before maturity. The petition is in the usual form. The answer admits the execution and delivery of the note and mortgage, and pleads payment of the sum by Edward Kuse, who purchased the premises subject to the mortgage to Burr, who it is alleged, was the agent of appellant bank, and that such money had been paid by Burr to the bank. To this answer was filed by way of reply a general denial. Trial was had, which resulted in a finding and judgment for appellee Kuse, holding that the note and mortgage had been satisfied by the payment to Burr, and decreeing the mortgage to be no lien upon the premises. The case is brought to this court on appeal by the Harrison National Bank, and the only question presented by the record is whether or not the decree of the trial court is sustained by sufficient competent evidence.
It is disclosed by the record that appellee Kuse paid to C. C. Burr, on the 7th day of January, 1893, long before the note was due, the face of the note and mortgage, with interest accrued up to that time. Burr executed a release in satisfaction of the mortgage, which he delivered to appellee, who placed it of record in Chase county. It is clearly established by the evidence that C. C. Burr was the agent for appellant in the matter of negotiating farm loans in Nebraska, and that during the time he acted as such agent, he placed farm loans upon land in various counties in the state to a sum amounting to about $ 250,000. The method which seems to have prevailed in the transaction of the business between Burr and appellant was as follows: Appellant, by J. M. Sharon, its cashier, would write a letter to Burr, directing him to send them a certain amount of farm loans; e. g. from three to ten thousand dollars' worth. Agents for Burr in different counties in the state, on being notified to do so, would take applications for farm loans, and send them to Burr at Lincoln. Such as were satisfactory to him were accepted, and he would thereupon prepare notes and mortgages to be sent to the agent to be signed and executed by the borrowers. The mortgage, when executed, would be placed of record, abstracts prepared, and the note and mortgage of the borrower, and the abstract showing the recording of the mortgage would be forwarded to Burr, who would send the papers, accompanied by a sight draft, through the First National Bank at Lincoln to appellant at Cadiz, Ohio. The testimony shows that so far as the business agency of Burr with appellant is concerned, the former did not take these applications for loans and make the loans thereon except upon orders coming to him from appellant. All of the business was transacted by Burr, and while as appears from the letters written by the officers of appellant bank, Burr was admonished to take only good, first-class farm loans, yet it does not appear that in any instance loans sent in by him in pursuance to such orders were rejected by appellant. Burr indorsed the notes, and usually assigned the mortgages. The notes were payable at the First National Bank of Lincoln, Nebraska. It is contended by appellant that it purchased these notes and mortgages in the usual course of business, and that Burr was not in any sense acting as its agent in placing the loans. The transactions between the parties regarding the placing of loans will not bear the construction placed on their relations contended for by appellant. It does not appear that Burr had any money invested in any of the loans; but that uniformly, after drawing a sight draft on appellant bank, would give his check to the party to whom the money was loaned. There can be no doubt that Burr was simply acting as the agent of appellant in placing these loans.
The transactions between Burr and appellant amounted to the sum it is claimed, of $ 250,000, and extended over a period of many years; at least from the spring of 1888, up to the latter part of 1894, and for a period of about a year after the loan in question was paid. Sometimes, before the coupons upon the loans handled by Burr came due, he would send out a notice to the mortgagors, notifying them of the amount of interest, and the maturity of the same, and request prompt remittance to him at Lincoln. The same course was followed at the maturity of the principal notes. There seems to have been no correspondence and no business connections of any description between the borrowers of the money and appellant, but Burr seems to have had exclusive charge of the loan business in Nebraska for appellant. Burr kept an open account with appellant bank in the name of J. M. Sharon, its cashier, which account he credited with all coupons and principal notes collected, and in which he charged appellant for all items remitted. Burr testified that he collected more than $ 75,000 in the manner indicated, all of which belonged to appellant. When mortgages became due and were not paid, Burr, in many instances, proceeded to foreclose, and took title in his own name, and executed to appellant a mortgage and note for the amount of the original note, with interest. When mortgages matured and parties were not able to pay, in many instances Burr granted extensions, taking coupons signed by the parties,...
To continue reading
Request your trial