Joslin v. Miller

• Decision Date: 20 March 1883
• Citation: 15 N.W. 214,14 Neb. 91
• Parties: JOSLIN v. MILLER AND OTHERS.
• Court: Nebraska Supreme Court

14 Neb. 91

15 N.W. 214

JOSLIN

v.MILLER AND OTHERS.

Supreme Court of Nebraska.

Filed March 20, 1883.

Appeal from Colfax county.

Hull & Stearns, for plaintiff.

Phelps & Thomas, for defendants.

MAXWELL, J.

This is an action to foreclose a mortgage. The following is a copy of the promissory note which the mortgage was given to secure.

+--------------------------------------+
                ¦“$400.¦LEIGH, NEBRASKA, April 1, 1876.¦
                +--------------------------------------+
                

Value received on the first day of April, 1881, I promise to pay Edward Joslin, or order, $400, with interest from date until paid at 10 per cent. per annum, as per coupons attached, at the office of the Corbin Banking Company, 61 Broadway, New York city. Unpaid interest shall bear interest at 10 per cent. per annum. On failure to pay interest within five days after due, the holder may collect principal and interest at once.

ROSWELL D. MILLER.”

The defendant Miller, in answer to the petition, alleges in substance that he received but $340, $60 being retained by Perkins & Newton and the Corbin Banking Company as commissions, and that said parties were the agents of the plaintiff. He also pleads payment of the sum of $110. There is also an allegation that the contract is to be governed by the laws of New York, and that by the laws of that state there can be no recovery whatever on the note, the contract being void for usury. The defendants, other than Miller, are lienholders on the mortgaged premises. The case was referred by consent to Hon. W. H. Munger, who heard the testimony, and found as follows:

“The undersigned referee, to whom the above cause was referred as sole referee to try the issues, fixed on the -- day of ____, 1882, at Lincoln, Nebraska, as the time and place for the trial of said cause, and notified the parties thereof. At the time and place the parties appeared by their attorneys, and, after hearing the evidence, I do find (1) that the defendant Roswell D. Millerexecuted the note and mortgage in plaintiff's petition mentioned; (2) that the defendant Roswell D. Miller only received the sum of $340 on said note and mortgage; (3) that the plaintiff paid the full sum of $400 for said note and mortgage; (4) that the sum of $60, a part of said sum of $400 paid by the plaintiff, was retained by Messrs. Perkins & Newton and the Corbin Banking Company as their commissions for their services in the matter of the loan from plaintiff to defendant Roswell D. Miller, for which said note and mortgage mentioned in plaintiff's petition was given; (5) that defendant Roswell D. Miller obtained said loan, for which said note and mortgage was given, through Corbin Banking Company of New York; (6) that said Corbin Banking Company, in making said loan, was agent for plaintiff; (7) that defendant Roswell D. Miller has paid on said note and mortgage the sum of $110; (8) that the defendants L. W. White & Co., Hughes & McKenzie, O. I. & L. C. Smith, Adolf Dworak, Frank H. Manny, who have answered, setting up their cross-bills, are entitled to a decree for the amount due, as stated in their answer; (9) that the priority of liens are as follows: First, Plaintiff's; second, L. W. White & Co.'s; third, Hughes & McKenzie's; fourth, O. I. & L. C. Smith's; fifth, Adolf Dworak's, and the defendants', in amount as stated in their several answers and cross-petitions; (10) that defendants recover costs of this action, except costs of defendants filing cross-bills, which should be taxed to defendant Roswell D. Miller; (11) that said loan from plaintiff to defendant Roswell D. Miller was usurious.”

Exceptions were filed to the report, which were overruled and a decree entered on the findings. The plaintiff appeals to this court.

In the argument of this case the attorneys for the appellee insisted very strenuously that the contract was to be governed by the laws of New York, and that as by the laws of that state, which are set out in the answer, an usurious contract is void, therefore the plaintiff is not entitled to recover. The same question, on substantially the same facts, was before ...