Pierce, Wright & Company v. Davey

• Citation: 61 N.W. 92,43 Neb. 45
• Decision Date: 05 December 1894
• Docket Number: 5348
• Parties: PIERCE, WRIGHT & COMPANY, APPELLANT, v. EZRA W. DAVEY ET AL., APPELLEES
• Court: Nebraska Supreme Court

61 N.W. 92

43 Neb. 45

PIERCE, WRIGHT & COMPANY, APPELLANT, v. EZRA W. DAVEY ET AL., APPELLEES

No. 5348

Supreme Court of Nebraska

December 5, 1894

APPEAL from the district court of Knox county. Heard below before POWERS, J.

Affirmed.

E. A Houston, for appellant.

O. W Rice, contra.

OPINION

HARRISON, J.

The plaintiff instituted an action in the district court of Knox county to foreclose a mortgage on certain lands described in the petition, alleging, in substance, that there was due on the note secured by the mortgage sought to be foreclosed, by reason of the default of defendants in the performance of conditions of the mortgage to be performed by them, the sum of $ 1,750, and interest at seven per cent per annum from November 27, 1889, the date of the execution and delivery of the note and mortgage by defendants to plaintiff. The defendants in their answer state that they applied to the agent of the plaintiff for a loan and received it in the sum of $ 1,525, for which they were required to and did execute and deliver to plaintiff a note for $ 1,750 with coupons attached evidencing the interest it was to bear, seven per cent per annum, payable semiannually, and also executed and delivered the mortgage in suit, securing the payment of the note and its coupons; that this constituted a usurious transaction, the $ 225, and seven per cent per annum interest on $ 1,750, the face of the note given, for five years, the time of the loan, being more than ten per cent per annum on $ 1,525, the amount which they claim was paid to them and was the actual sum loaned. In other words, the answer was a plea of usury. To this answer the plaintiffs filed a reply, in which it was stated that the defendants made application to plaintiff for a loan of $ 1,800, which was approved and allowed in the sum of $ 1,750; that the agreed rate of interest thereon was to be ten per cent per annum; that $ 208.50 was retained of the $ 1,750 as a payment of interest in advance, or a portion of the three per cent for five years, and a part of the ten per cent interest which the loan was to bear and was so retained by and with the agreement and consent of defendants. The trial court made a finding in favor of plaintiff in the sum of $ 1,750, less $ 208.50 interest paid in advance, and rendered a decree in accordance with such finding. It seems clear that the trial court must have concluded that the defendant's plea of usury was not supported by the evidence, but that the plaintiff was not entitled to receive the interest or any part of it in advance. The evidence is very meager and unsatisfactory, but, we think, may be said to establish that the defendant made an application to plaintiff for a loan of $ 1,800, and the papers were afterwards executed and delivered showing the loan to be in the sum of $ 1,750; that of this amount defendants received the sum of $ 1,525, either in payment of liens upon the property or in cash. The expenses of obtaining an abstract, releases of some mortgages which were paid from the proceeds of the loan and released before plaintiff's mortgage was filed and recorded, the recording of plaintiff's mortgage, etc., were paid from...