Olmstead v. New England Mortg. Sec. Co.

• Decision Date: 07 July 1881
• Citation: 11 Neb. 487,9 N.W. 650
• Parties: OLMSTEAD v. NEW ENGLAND MORTGAGE SECURITY CO.
• Court: Nebraska Supreme Court

11 Neb. 487

9 N.W. 650

OLMSTEAD

v.NEW ENGLAND MORTGAGE SECURITY CO.

Supreme Court of Nebraska.

Filed July 7, 1881.

Error from Butler county.

Phelps & Thomas, for plaintiffs.

E. R. Dean and Hull & Stearns, for defendant.

MAXWELL, C. J.

This is an action to foreclose a mortgage on real estate. The defence is usury. The cause was referred to a referee, who found the issues of law and fact in favor of the defendant in error. A decree being rendered in its favor the plaintiffs bring the cause into this court by petition in error. It appears from the testimony that one A. W. Ocabock advertised in the newspapers that he was making loans in Butler and Dodge counties through one C. C. Cook; that the plaintiff in error Willis A. Olmstead applied to Cook for a loan, and was directed by him to Ocabock to see if the plaintiff's farm, which was offered as security, would be acceptable to the company. Ocabock sent an agent to examine the farm, who, being satisfied therewith, presented the following application for the loan to the plaintiff for his signature: “Whereas, I have this day employed the Corbin Banking Company to negotiate for me a loan of $400 for the term of five years, with interest at the rate of 10 per cent. per annum, upon a note and mortgage securing the same, which shall be a first lien upon my farm in Butler county, Nebraska: Now, then, if they shall succeed in negotiating said loan within 30 days, upon the usual conditions exacted by eastern money lenders as to security, perfecting of title, insurance, etc., I agree to pay the said Corbin Banking Company the sum of $80, which shall be in full of their commissions, and the commissions of those whom they employ to assist them in making said negotiations. WILLIS A. OLMSTEAD. David City, Nebraska, February 24, 1876.”

The above was on a printed form, leaving only the amount, time, county, state, and name of the applicant to be filled out. This was accompanied by a printed form containing a minute description of the farm, which concluded as follows: “The statements made in the above application, and the supplement made herewith to the Corbin Banking Company, are true, and are made by me to be used by said company as my agent in procuring me the above loan. WILLIS A. OLMSTEAD, Applicant. Dated David City, Neb., Feb. 24, 1876.”

Upon this application a loan of $350 was effected; a promissory note, of which the following is a copy, being executed by Willis: “$350. SUMMIT P. O., March 27, 1876. Value received, on the twentieth day of March, 1881, I promise to pay the New England Mortgage Security Company, or order, $350, 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 the principal and interest at once.

WILLIS A. OLMSTEAD.”

This note had coupons attached, and was secured by mortgage to the New England Mortgage Security, the interest being made payable at the office of the Corbin Banking Company, New York city, on the first day of April of each year. Upon the execution of the note and mortgage, Olmstead was paid $250. In the spring of 1878 he received from Ocabock the following: “ W. A. Olmstead, Summit--DEAR SIR: Your interest, amounting to $35, will by due at the office of the Corbin Banking Company, 61 Broadway, New York city, April 1, 1878. It is important that you should make prompt payment, as you will see by the enclosed circular. Respectfully yours, A. W. OCABOCK. Are your taxes paid?”

This letter is on the same sheet with the circular referred to, and is printed, except the names of Olmstead and Ocabock, and there is printed in red ink across the face of the same the following: “If the amount is sent to me to forward, an additional charge of 15 cents is made to cover exchange. A. W. OCABOCK.” The circular referred to is as follows:

“ The Corbin Banking Co., New York--DEAR SIR: Please say to parties having interest payable at this office on a day certain, that their money is due here on that day and to save costs must be here. When not paid promptly, we shall return to the owners, and they will send to an attorney for foreclossure. The five and thirty days' delay named in notes relates to the right to collect the principal sum, and does not prevent a foreclosure for non-payment of interest. As soon as a bill is filed the attorney's fees accrue, and when debtors will not take care of their interest at maturity they cannot complain if a suit and heavy costs follow. Respectfully yours, A. CORBIN, President.”

Two other circulars of similar import, from the Corbin...