Tepoel v. Saunders Cnty. Nat. Bank

• Decision Date: 21 November 1888
• Parties: TEPOEL v. SAUNDERS COUNTY NAT. BANK.
• Court: Nebraska Supreme Court

24 Neb. 815

40 N.W. 415

TEPOEL

v.SAUNDERS COUNTY NAT. BANK.

Supreme Court of Nebraska.

November 21, 1888.

Syllabus by the Court.

Where a party effected a loan for another of $4,000, for five years, at 8 per cent., and took notes as a bonus for $350, without interest, due in less than one year from the date of the loan, held, that interest for five years would not be added to the notes taken for a bonus in order to taint the transaction with usury.

A party charging fraud and misrepresentation must plead the facts, and a mere allegation of fraud or misrepresentation is not sufficient.¹

Error to district court, Saunders county; MARSHALL, Judge.

Action on a promissory note by Saunders County National Bank against Herman C. Tepoel. Judgment for plaintiff, and defendant brings error.J. J. O'Connor and C. A. Baldwin, for plaintiff in error.

Bell & Sornborger, for defendant.

MAXWELL, J.

This is an action on a promissory note, of which the following is a copy: “$250.00. WAHOO, NEBR., July 28, 1884. April 1, 1885, after date, for value received, I jointly and severally promise to pay to the order of H. H. Dorsey, at the Saunders County National Bank of Wahoo, Nebraska, the sum of two hundred and fifty and no 100 dollars, with interest at 10 per cent. per annum, payable annually from maturity, until paid. HERMAN TEPOEL.” The defenses set up in the answer are usury, fraud, and misrepresentation. On the trial of the cause in the court below judgment was renderedin favor of the bank for the amount of the note, and interest thereon. The principal error relied upon in this court is that the judgment is against the evidence. The testimony shows that in July, 1884, the plaintiff in error was about to purchase a half section of land in Saunders county, and applied to the cashier of the defendant in error to obtain the money to pay for the same, the loan to be secured by a mortgage on the land. The cashier thereupon promised to obtain the money. After some delay he did obtain the $4,000 for the plaintiff in error, on five years' time, with annual interest at 8 per cent. The money was obtained from a banking institution in Omaha, for which there is some testimony tending to show the cashier had authority to make loans, and for the making of this one he received $100 from the lender. He also exacted from the plaintiff in error, as a bonus for obtaining the loan, the note in question, and another for $100, the terms of which do not very clearly appear from the testimony. The exacting of this bonus, it is claimed, makes the interest exceed 10 per cent., and therefore taints the entire contract with usury, and renders the note in this case...