State ex rel. Spillman v. Central Purchasing Company
| Decision Date | 19 April 1929 |
| Docket Number | 26475 |
| Parties | STATE, EX REL. O. S. SPILLMAN, ATTORNEY GENERAL, PLAINTIFF, v. CENTRAL PURCHASING COMPANY, DEFENDANT |
| Court | Nebraska Supreme Court |
Original action by the state to oust defendant from doing business in the state. Writ of ouster allowed.
EXCEPTIONS OVERRULED, AND WRIT OF OUSTER ALLOWED.
Syllabus by the Court.
" A loan of money is the delivery by one party and the receipt by the other party of a given sum of money, upon an agreement, express or implied, to repay the sum loaned, with or without interest." 38 C. J. 128, § 8.
" A sale is a transfer of the absolute or general property in a thing for a price in money, which the buyer pays or promises to pay for the thing bought and sold." 23 R.C.L. 1186, § 2.
State v. Brictson Mfg. Co., 113 Neb. 781, 205 N.W 246, 41 A.L.R. 992.
Report of referee and evidence examined; exceptions overruled, report adopted, and writ of ouster allowed.
Original action by the State, on the relation of O. S. Spillman, Attorney General, against the Central Purchasing Company, to enjoin and oust the defendant, a nonresident corporation, from doing business in the state. On defendant's exceptions to referee's report. Exceptions overruled, and writ of ouster allowed.
O. S. Spillman, Attorney General, George W. Ayres and T. J. McGuire, for plaintiff.
Daniel J. Gross, Smith, Schall, Wright & Sheehan and Harry L. Welch, contra.
Heard before GOSS, C. J., DEAN, GOOD, THOMPSON and EBERLY, JJ., and REDICK and SHEPHERD, District Judges.
This is an original action in the name of the state of Nebraska, on the relation of O. S. Spillman, then attorney general. The purpose of the action was to enjoin and oust the defendant, a nonresident corporation, from doing business in this state. The issues requiring evidence to be taken, the court appointed Honorable L. J. Te Poel, of Omaha, as referee, with instructions to take evidence and to report the same to this court, together with his findings of fact and conclusions of law. Upon the referee's report the defendant filed its exceptions and the case was duly briefed and orally argued to the court.
The referee found that the defendant was a corporation foreign to Nebraska, probably originally incorporated under the laws of Delaware; that it complied with the laws of Nebraska in the matter of appointing a resident agent, as required of foreign corporations in this state; that it did business in Omaha from some time in the fall of 1926 until this suit was commenced in March, 1928; that numerous parties in that period went to its office and obtained money from it on assignments of wages or salary, the total number of transactions being approximately 11,000; that the form of instrument (set out in the evidence) executed by the party obtaining money is in two parts, separated by a perforated line, the upper part purporting to be an application to the defendant to purchase wages or salary "already earned," the lower part purporting to be an assignment of these wages or salary; that in every instance, save one as to one employee, in evidence, the party obtaining money from the defendant drew his wages or salary in person on payday and brought to defendant an amount 10 per cent. in excess of what he had obtained, and that in the case of one employee, who obtained semi-monthly larger amounts than the usual transactions showed, there was brought back 8 per cent. more than the amount obtained from the defendant; that there was no serious attempt on the part of defendant to collect from the employer on the instruments; that, in several hundred transactions with employees of the Union Pacific Railroad Company, notice of assignment was given in only three or four instances; that it does not appear that any suit was ever brought, or any legal remedy resorted to, against the employer if the employee failed or refused to come in with the money after he drew his pay covered by the instrument he had signed; that the record shows the railroad employees in Nebraska are paid twice a month (as required by section 5389, Comp. St. 1922), and that many railroad employees obtained money from defendant twice a month over a period of several months, each time closing the previous transaction, thus returning each month a total of 20 per cent. in excess of the actual money obtained from defendant; that the manager of defendant testified that he considered it the duty of one obtaining money on an instrument to deliver the money which the instrument called for; that when the money was paid the instrument was stamped "Delivered" but was retained by defendant; that the defendant company advertised that these transactions by which railroad men could obtain money were "strictly confidential," the advertisement in evidence further showing: "Quick money for railroad men, no collateral required, no indorsement, no mortgage."
In addition to the findings of fact the referee concluded as matters of law: (1) That the defendant is a foreign corporation doing business as such in Nebraska; (2) that the transactions had by the defendant company amounted to loans and not to sales; (3) that the defendant violated the positive laws of the state by charging interest at the rate of more than 10 per cent. per annum, in that it charged 20 per cent. a month, and that it has therefore forfeited its right to do business in the state; (4) that no right of the defendant guaranteed by the federal Constitution is violated by the enactment and enforcement of the usury laws of the state; that the state laws provide a reasonable classification, provide no distinctions, and in no way discriminate against the defendant because it is a foreign corporation; (5) that this is an action in equity, and that the court may properly grant an order enjoining the defendant from continuing to do business in the state; because defendant has so little property that can be reached, the referee sees no practical occasion for the appointment of a receiver and does not recommend such an appointment.
The report of the referee is a thorough statement of the facts shown in the evidence and a learned presentation of the law from which his conclusions are derived.
The exceptions of defendant are many, but its brief and argument narrow the propositions of law to two. The first is "The buying of earned salaries or wages at a discount is not the loaning of money and is not a violation of the usury laws of the state of Nebraska." Heading the long list of citations under this proposition is section 2845, Comp. St. 1922. This section, in its present form, was...
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State ex rel. Spillman v. Cent. Purchasing Co.
...118 Neb. 383225 N.W. 46STATE EX REL. SPILLMAN, ATTY. GEN.,v.CENTRAL PURCHASING CO.No. 26475.Supreme Court of Nebraska.April 19, Syllabus by the Court. “A loan of money is the delivery by one party and the receipt by the other party of a given sum of money, upon an agreement, express or impl......