Fisher v. Porter

U.S. Circuit Court

Fisher v. Porter

23 F. 162, 1885 U.S. App. LEXIS 1886

CourtUnited States Circuit Court

DecidedFebruary 27, 1885

StatusPublished

Cited by1 cases

This text of 23 F. 162 (Fisher v. Porter) is published on Counsel Stack Legal Research, covering United States Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fisher v. Porter, 23 F. 162, 1885 U.S. App. LEXIS 1886 (uscirct 1885).

Pincite

Opinion

Dundy, J.

There was a mistake made in the mortgage, in properly describing the land intended to be covered by it. This is uncontradicted. The mortgage must, therefore, be reformed so as to carry out the intention of the parties.

The defense of usury relied on is not sustained by the proof, especially if the later decisions in this court are to be followed in determining that question. The Porters applied to Tullys, of Council Bluffs, to borrow $1,900. Tullys was a loan broker, whose business it was to procure loanfe for others, he charging a large commission therefor. The Porters specially employed him to negotiate a loan for them, and agreed to pay him 10 per cent, commission if he procured for them the $1,900 desired. This he did. The money came into his hands, and he retained his commission according to agreement. This he had a right to do, unless he (Tullys) was the agent of Fisher, the mortgagee. Tullys went to Plattsmouth to look after the matter, prepared all the papers, did all the business for the Porters, received the money, kept his commission, and gave to the Porters the balance. There is no testimony in the record that shows that Fisher, the mortgagee, ever received, or was to receive, anything whatever from the Porters, except the principal of $1,900, and interest thereon at 10 per cent, per annum. That was lawful at the time. There is nothing that connects Fisher in any way with the commission retained by Tullys, nor is there anything that shows Fisher even knew of that part of the transaction. Tullys expressly says in his testimony that he was not agent for Fisher, and did not represent him, and that he was acting solely for the Porters. If Fisher had shared in the commission retained, or had agreed to do so, or if Tullys had in any sense been agent for Fisher, then Fisher woüld be [163]*163hold responsible for Tullys’ acts. As it is, he was not responsible therefor.

Decree will be allowed plaintiff for amount duo on mortgage, and for taxes paid by him on the land.

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Dundy, J.

There was a mistake made in the mortgage, in properly describing the land intended to be covered by it. This is uncontradicted. The mortgage must, therefore, be reformed so as to carry out the intention of the parties.

The defense of usury relied on is not sustained by the proof, especially if the later decisions in this court are to be followed in determining that question. The Porters applied to Tullys, of Council Bluffs, to borrow $1,900. Tullys was a loan broker, whose business it was to procure loanfe for others, he charging a large commission therefor. The Porters specially employed him to negotiate a loan for them, and agreed to pay him 10 per cent, commission if he procured for them the $1,900 desired. This he did. The money came into his hands, and he retained his commission according to agreement. This he had a right to do, unless he (Tullys) was the agent of Fisher, the mortgagee. Tullys went to Plattsmouth to look after the matter, prepared all the papers, did all the business for the Porters, received the money, kept his commission, and gave to the Porters the balance. There is no testimony in the record that shows that Fisher, the mortgagee, ever received, or was to receive, anything whatever from the Porters, except the principal of $1,900, and interest thereon at 10 per cent, per annum. That was lawful at the time. There is nothing that connects Fisher in any way with the commission retained by Tullys, nor is there anything that shows Fisher even knew of that part of the transaction. Tullys expressly says in his testimony that he was not agent for Fisher, and did not represent him, and that he was acting solely for the Porters. If Fisher had shared in the commission retained, or had agreed to do so, or if Tullys had in any sense been agent for Fisher, then Fisher woüld be [163]*163hold responsible for Tullys’ acts. As it is, he was not responsible therefor.

Decree will be allowed plaintiff for amount duo on mortgage, and for taxes paid by him on the land.

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Bluebook (online)

23 F. 162, 1885 U.S. App. LEXIS 1886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-porter-uscirct-1885.

Opinion

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