Kimball v. Zimmermann

• Decision Date: 03 June 1897
• Docket Number: 7361
• Citation: Kimball v. Zimmermann, 71 N.W. 736, 51 Neb. 861 (Neb. 1897)
• Parties: GEORGE C. KIMBALL, APPELLANT, v. JACOB ZIMMERMANN ET AL., APPELLEES
• Court: Nebraska Supreme Court

71 N.W. 736

51 Neb. 861

GEORGE C. KIMBALL, APPELLANT, v. JACOB ZIMMERMANN ET AL., APPELLEES

No. 7361

Supreme Court of Nebraska

June 3, 1897

APPEAL from the district court of Kearney county.Heard below before BEALL, J. Affirmed.

AFFIRMED.

Dryden & Main, for appellant.

J. L McPheely, contra.

OPINION

IRVINE, C.

July 25, 1885, Jacob Zimmermann and wife made two promissory notes to the order of H. Fred Wiley of Kearney, each for $ 600, and due respectively December 1, 1886, and December 1, 1887.These notes were secured by mortgage on land then and still belonging to Zimmermann.Soon after the execution of the notes and mortgage Wiley indorsed and delivered the notes to George C. Kimball, and a few days after the maturity of the first note Zimmermann paid the amount thereof to Wiley, Wiley stating that he had not the note in his possession, but would procure it and deliver it to Zimmermann.When the second note came due both notes were sent by Kimball to a firm of lawyers in Kearney for collection.Zimmermann then paid the second note, and soon thereafter procured a release of the mortgage from Wiley.In 1892 Kimball began this action to foreclose the mortgage for default of payment of the first note.Zimmermann, by his answer, pleaded payment.The court found for the defendants and dismissed the case.The plaintiff appeals.

The principal question presented is the authority of Wiley to collect the first note.It appears from the evidence that Kimball was, in 1884, in Kearney visiting friends, and there met Wiley, who, after Kimball's return to his home in Michigan, addressed him a letter, evidently in answer to one received from Kimball, but not in evidence, whereby Wiley proposed that he should either make loans on behalf of Kimball, or should borrow money from Kimball and himself lend it at short time.Afterwards a remittance was made by Kimball to Wiley, and Wiley sent to Kimball his note for $ 2,000, and also the Zimmermann notes together with another, as collateral to the $ 2,000 note.There seem to have been further advances by Kimball, and another note for $ 4,000 was executed.Wiley testifies that his understanding was that he was to lend the money, collect it, and relend it "keeping the securities good" with Mr. Kimball.But it further appears that there was no previous conversation with Mr. Kimball on this subject.The transaction was entirely by mail.Some of the letters are not in...