Tarascio v. Mancuso

• Decision Date: 10 April 1942
• Docket Number: 31268.
• Citation: 3 N.W.2d 400,141 Neb. 225
• Parties: TARASCIO et al. v. MANCUSO.
• Court: Nebraska Supreme Court

3 N.W.2d 400

141 Neb. 225

TARASCIO et al. v. MANCUSO.

No. 31268.

Supreme Court of Nebraska

April 10, 1942

Syllabus by the Court.

1. "A payment or other performance by a third person accepted by a creditor as full or partial satisfaction of his claim, discharges the debtor's duty in accordance with the terms on which the third person offered it." Restatement, Contracts, sec. 421.

2. "Where money is paid to another under the influence of mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payor that the fact was untrue an action will lie to recover it back." Merchants'-Mechanics' First Nat. Bank v. Cavers Elevator Co., 105 Neb. 321, 180 N.W. 588.

Thomas E. Conley and George Evens, both of Omaha, for appellant.

Samuel P. Caniglia, of Omaha, for appellees.

Morsman & Maxwell and Kennedy, Holland, DeLacy & Svoboda, all of Omaha, amici curiæ.

Heard before SIMMONS, C. J., and ROSE, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

SIMMONS Chief Justice.

This is an action brought to declare a mortgage null and void. Defendant by cross-petition prays for the foreclosure of the mortgage. The trial court held that the mortgage was null and void canceled it of record, and gave plaintiffs a judgment of recovery for all payments made within the period of the statute of limitations.

Defendant on appeal assigns many errors, but by argument confines the question to that of whether or not the note and mortgage are enforceable obligations. We determine that question.

September 24, 1927, the defendant entered into a contract to sell to Andrea and Gaetana Tarascio a residence property in the city of Omaha for $1,500 payable $20 monthly. By 1933 the Tarascios were indebted to the defendant in the amount of approximately $1,400, payments were delinquent, and defendant was insisting upon payment or foreclosure. After discussing the matter with Mr. Tarascio, defendant went to the office of the Home Owners Loan Corporation to see what could be done about refinancing. The result was that on August 11, 1933, Mr. Tarascio made application for a loan at the instigation of the defendant. This application recited the indebtedness to the defendant of $1,400 and in addition delinquent taxes. Defendant testified, in effect, that upon his first call to the Home Owners Loan Corporation office he was told he could take a second mortgage. However, it appears that this statement was made to him in this first conversation when he was asking about the "rules" and before any application was submitted to the Home Owners Loan Corporation by the Tarascios and before that corporation had made any investigation of the property or the condition of the debtor. We find no reference to any subsequent discussion or mention of a second mortgage and the Home Owners Loan Corporation has no record of any such notice or understanding.

However, there was received in evidence a "loan agreement" on a Home Owners Loan Corporation form, which referred to the property, to the amount due on the loan, and to the delinquent payments and unpaid taxes. Written in a blank space on the form are these words: "I will accept $685 in full settlement." Immediately thereunder is the signature of the defendant. Defendant testified that he signed this on August 13, 1933, two days after the application was made.

There is no direct evidence as to how the $685 was arrived at. However, defendant offered the Tarascio application for a loan in evidence without qualification. On the application after a reference to the "Mancuso balance, $1,400" in writing are the figures "685"; below that "Ins. 25.00; tax 125.00; reprs. 200.00." These figures total $1,035.

It further appears that the total loan finally approved by the Home Owners Loan Corporation was $1,040. The settlement sheet dated December 14, 1933, shows "advanced to lien holders Samuel Mancuso" bonds and accrued interest total $661.72, cash $16.78, total $678.50 "Paid to Mortgagee." Other disbursements including taxes, repairs $200, expenses of the loan, etc., total $361.50.

December 20, 1933, Mr. and Mrs. Tarascio executed, acknowledged and delivered a mortgage to the defendant to secure a note "of even date" for $840 (the note is dated December 22, 1933), reciting that it was subject to a first mortgage in favor of "Home Owners Loan Corporation." The Home Owners Loan Corporation had no knowledge of this note and mortgage.

December 26, 1933, the defendant signed a "Lien holder" receipt to the corporation reciting that he had received "authorization for delivery of Home Owners Loan Corporation bonds in the amount of $661.72 and $16.78 in cash in full payment of amount due the undersigned as lien holder in the matter of the loan of Andrea Tarascio and Gaetana Tarascio *** refunded by the above corporation."

The next day, December 27, 1933, the mortgage in question was recorded. The defendant as of January 1, 1934 furnished the Tarascios a statement showing that he figured that there was due $1,418.09 on the contract. He then discounted the $650 in bonds to their "present day value at the rate of $83.50" and arrived at a balance due him of $850.77 shown on the statement as $840 second mortgage and $10.77 "Balance still remaining due." There is no question but what the note and mortgage in this action were given for the amount which the defendant calculated would still be owing to him after he received and discounted the Home...