Mackey v. Winkler

• Decision Date: 30 September 1886
• Citation: 35 Minn. 513,29 N.W. 337
• Parties: MACKEY v WINKLER.
• Court: Minnesota Supreme Court

35 Minn. 513

29 N.W. 337

MACKEYvWINKLER.

Supreme Court of Minnesota.

September 30, 1886.

Appeal from a judgment of the district court, Ramsey county.

E. S. Chittenden and J. W. Lusk, for respondent, Safford Mackey.

G. Willrich and John W. Willis, for appellant, G. H. Winkler.

BERRY, J.

The plaintiff, Safford Mackey, who resides in Wisconsin, was in the habit of sending money to F. J. Mackey, a loan broker doing business in St. Paul and Minneapolis, to be loaned out by him, and under his direction, at 10 per cent. interest. The loans were made in plaintiff's name, and for him, but plaintiff paid F. J. Mackey nothing for his services. On December 9, 1884, defendant made to F. J. Mackey a written application, which, so far as here important, is as follows: “I *** hereby apply to F. J. Mackey to act as my agent to procure for me a loan of $367.50, for one month, with interest at ten per cent. per annum, to be secured by chattel mortgage on personal property owned by me, *** and described in a certain chattel mortgage executed by me, and bearing even date herewith; and I agree to pay same F. J. Mackey, for acting as my agent in procuring such loan, and for examining said property, and drawing the necessary papers to perfect such loan, if he is able to procure the same, the sum of $17.50. He is to charge me nothing for examining said property, or for his services of any kind, unless he procures said loan for me.”

Pursuant to the application, F. J. Mackey made a loan to defendant, taking his note, payable to plaintiff, for $367.50, and as security for the same a chattel mortgage upon furniture and fixtures belonging, as we infer, mostly, if not altogether, to a Turkish bath establishment; handing to plaintiff $350 of said sum in cash, and retaining for his own personal benefit $17.50. The court finds that “the said F. J. Mackey charged the defendant a commission of $17.50 for procuring the loan, examining the property on which the security was to be given, drawing papers and the like, which commission it was agreed was to go to, and which did go to, the said F. J. Mackey personally, and none of it went to plaintiff; nor did he (the plaintiff) know anything about it, or how the said F. J. Mackey remunerated himself for expense and time in his business as a loan broker, the said plaintiff never at any time receiving over 10 per cent. on his loans.”

Upon the foregoing state of facts we agree with the trial court that the note and mortgage are...