Knopf v. Perkins
| Decision Date | 12 June 1934 |
| Docket Number | 28838 |
| Citation | 255 N.W. 30,127 Neb. 366 |
| Parties | CARRIE M. KNOPF, APPELLEE, v. EDWIN E. PERKINS ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Adams county: LEWIS H BLACKLEDGE, JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
1. " One who pays a negotiable bond secured by mortgage to the mortgagee who does not have possession of the bond has the burden of proving the authority of such mortgagee to receive payment." Davis v. Polak, 126 Neb. 640, 254 N.W. 246.
2. " Ordinarily, no duty rests upon the indorsee or holder of a negotiable note or bond to notify the maker of such ownership; but the duty is upon the maker to seek out the holder of such instrument when making payment." Davis v. Polak, 126 Neb. 640, 254 N.W. 246.
3. " Where one of two parties to transactions must suffer a loss through the misconduct or the wrongs of a third person, the superior equities will be determined from all of the material circumstances, and the burden will be allowed to fall where equity and justice place it." Omaha Elevator Co. v. Chicago, B. & Q. R. Co., 104 Neb. 566, 178 N.W. 211.
4. Preponderance of evidence held to prove that a loan broker who had collected interest on a negotiable note secured by mortgage and had turned the collected money over to the holder of the note was not authorized as agent to receive the principal.
Appeal from District Court, Adams County; Blackledge, Judge.
Suit by Carrie M. Knopf against Edwin E. Perkins, Kizzie Perkins, David M. Perkins, Kittie M. Perkins, and others. From the judgment, defendants appeal and plaintiff cross-appeals.
Judgment reversed, and cause remanded, with directions.
Charles E. Bruckman and L. S. Dunmire, for appellants.
Stiner & Boslaugh and Edmund P. Nuss, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and THOMSEN, District Judge.
This is a suit to foreclose a 10,000-dollar mortgage to the extent of $ 2,100 on lots 16 and 17, block 24, city of Hastings. The mortgage was executed September 22, 1927, by defendants, Edwin E. Perkins, Kizzie Perkins, David M. Perkins and Kittie M. Perkins, mortgagors, to secure several negotiable notes aggregating $ 10,000, maturing September 22, 1932. The notes were payable to the order of Ernest Hoeppner at the office of Hoeppner & Uerling, and Hoeppner was named in the mortgage as mortgagee. The notes were sold to different persons. By mesne assignments plaintiff became the owner and holder of a 2,100-dollar note in the series. September 22, 1930, defendants paid Hoeppner & Uerling, the loan brokers, $ 10,300, the sum of the entire principal debt and unpaid interest. The loan brokers paid each bondholder his due with the exception of plaintiff who received nothing. Her portion of the payment or the sum of $ 2,100 was appropriated by the loan brokers to their own use. They went into the hands of a receiver March 2, 1932. Plaintiff brought this suit to enforce payment of her note by foreclosure of the mortgage securing it.
Mortgagors, defendants, pleaded payment in full to Hoeppner & Uerling at their office September 22, 1930, without notice or knowledge that any one else owned any of the notes, and alleged that payment was so made with the promise of Hoeppner & Uerling to cause the mortgage to be satisfied of record, and that Hoeppner & Uerling were either owners and holders of the notes or were acting as agents for the owners and holders with power to collect both principal and interest.
Upon a trial of the cause the district court found that Hoeppner & Uerling received from mortgagors for plaintiff $ 2,100 and misappropriated the same and were at the time agents for both plaintiff and mortgagors; that the loss occasioned by the misappropriation of $ 2,100 should fall equally on creditor and debtors. Mortgagors were ordered to pay plaintiff $ 1,135 within 90 days and upon failure to do so foreclosure was ordered. Mortgagors appealed, insisting on satisfaction of the mortgage, and plaintiff took a cross-appeal, contending for payment of her 2,100-dollar note in full with interest and for an order of foreclosure in the event of default.
The principal question presented by the record is raised by the issue as to the agency of Hoeppner &...
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