Sanders v. Wedeking

66 N.W. 18, 47 Neb. 71, 1896 Neb. LEXIS 558

• Court: Nebraska Supreme Court
• Decided: February 4, 1896
• Docket: No. 6105
• Status: Published

Opinion

Ryan, C.

This action was brought by plaintiff in error as. indorsee upon a promissory note for $200 made by the defendants in error to the People’s Bank of Tobias. The defense of usury was sustained by the findings and verdict of the jury, and the sole question presented for our determination is, w'hether or not these findings and this judgment adverse to the plaintiff in error were sustained by sufficient evidence. When the note was given, Worden A. Sanders, a son of the plaintiff in error, was assistant cashier of the bank above -named, though it appears that his duties as such assistant cashier admitted of his devoting attention to his-trade of a jeweler in a building different from that, in which the banking business was conducted. He was, however, in the bank when the cashier, Stanley Larsen, made the loan to the defendants in error, which is conceded, in its inception, to have been usurious. It was the custom of this bank to loan at usurious rates, and the assistant cashier was aware of this, for, upon being asked at what rate this bank made loans, he told one of the defendants in error that it was two per cent a. month on short time, but that if a man took lots of m’oney for six months, it would be cheaper. When the cashier of the bank was arranging for this particular loan, the assistant cashier was near by in the same room, and, as one of the defendants testified, he was within hearing distance of the conversation, carried on, as it was, in an ordinary tone of voice by each party. Immediately after this note was taken, it was transferred by the following indorsement: “Pay to A. B. Sanders, without recourse on me. Stanley Larsen, Cas.” The payment for the transfer of this note, it was testified without contradiction, was made by Worden A. Sanders. Whether this payment was with his own means, whereby he became-the owner of this note and afterwards transferred it to his father, or whether he bought with means of his father in his hands, were propositions contested and submitted to the jury, which by special verdict found the latter established by the proofs. The fact that the indorsement was made by the cashier directly_ to A. B. Sanders would seem entitled to some weight, as indicating that in this purchasing Worden A. Sanders was acting as the agent of his father. He, however, denied that this was the case, and testified that his father had loaned him $600 to be reloaned by Worden as his own, and that having bought this note with a part of this money, he caused it to be indorsed to his father, direct, in part'payment of said $600 which he was owing.

D. H. Conant, who was county judge when the case was tried in the county court, testified in the district court that, on the trial before him, plaintiff in error had testified that his son had purchased the note for the plaintiff in error. In this Mr. Conant was corroborated by one of the defendants in error. On these two propositions of facts— First, that Worden A. Sanders, at the time of the purchase of the note, had knowledge of such facts that the defense of usury against him could properly be shown; and, second, that this bound his father, for whom he was acting as agent — there was sufficient evidence to sustain the verdict of the jury. There is presented by the record no other question, and the judgment of the district court is

Affirmed.