
    S. C. Burlingim v. Equitable Trust Company.
    Filed November 4, 1897.
    No. 7466.
    Review: Conflicting Evidence. A finding of fact by a district court on conflicting evidence will not be disturbed by this court unless manifestly wrong.
    
      Error from the district court of Seward county. Tried below before Wheeler, J.
    
      Affirmed.
    
    
      Fonal Bros, and George W. Lowley, for plaintiff in error.
    
      Morris, Beekman & Marple, and D. O. MoEillip, contra.
    
   Harrison, J.

It appears herein that the plaintiff in error, during a number of years, commencing probably in the year 1885, was local agent for defendant in error at Seward, engaged in making loans on lands or farms. During the first months of the year 1892, applications were made to him for two loans, — one in the sum of $800 and one in the sum of $2,000. The applications were approved. The coupon notes, or bonds and mortgages, were prepared, and under the supervision of the plaintiff in error were executed, and one of the mortgages was filed for record February 13, 1892; the other, March 16, 1892. At or about these dates, the notes or bonds and abstracts of titles of the mortgaged lands were forwarded to the defendant in error. On April 2, 1892, evidently in answer to a letter of inquiry and demand from defendant in error, the plaintiff wrote and sent a letter to the Trust Company in which he stated:

“S. C. Burlingim, Mortgage Loan Broker,
“First and Second Mortgage Loans.
“Seward, Neb., April 2,1892.
líE. M. Fairfield, Secy., Omaha, Febr. — Dear Sir: Yours of Apl. first received, asking me to send statement of settlement duly executed of Delos P. O’Neal, and also recorded mortgage of O’Neal and Franz, and you sa.y my commission is not payable until papers in these loans are completed. I wrote you on the 30th in regard to sending in these recorded mortgages and I wrote you that when you sent me my commission in the O’Neal loan I would send you mortgages above stated. Now I will keep these mortgages until you send me my com. Yours truly.”

On June 8, 1892, O. M. Cowan, located at York, Neb., an examiner of lands for tbe trust company, by request or order of tbe company, went to Seward, called on plaintiff: in error, and demanded of him tbe two mortgages in question. To tbe demand tbe plaintiff in error replied that be would deliver or send tbe mortgages to the' company when paid bis commission for making tbe loans. He bad received tbe commission on the loan of $800, but bad forgotten tbis fact, hence was claiming it. On tbe same day of tbe interview with Cowan tbe plaintiff in error mailed the mortgages to the company ,and they were received by it two days later, or on tbe 10th of tbe month. Immediately after mailing tbe mortgages to tbe company, tbe plaintiff in error instituted this suit, procuring tbe summons to be served on C. M. Cowan. Tbis action was brought in tbe county court. Prom tbe judgment an appeal was taken to the district court, where a jury was waived and a trial bad to tbe court which resulted in a judgment favorable to defendant in error. Tbe plaintiff has brought tbe case to tbis court for review.

Wben tbe company received tbe mortgages, it sent tbe plaintiff in error a draft, in amount $24.90, to pay the commission for effecting tbe $2,000 loan. Tbe total of tbis commission was $80. The company claimed it bad been forced by tbe plaintiff’s retention of the mortgage to incur tbe expense of sending C. M. Cowan from York to Seward, $2.85, and also to procure certified copies of tbe mortgages. Tbis last was done by Cowan when in Seward on June 8, 1892, and cost $2.25, — total expense, $5.10, which deducted from tbe whole commission, $30, there remained $24.90, tbe amount sent to plaintiff by draft after tbe company received tbe mortgages. Tbe main issuable fact, and placed in litigation by tbe pleadings, was whether or not the plaintiff’s commission on a loan became due before tbe recorded mortgage in each instance was forwarded to and received by the company. The company contended that it did not; the plaintiff, to the contrary, or that when the note or bond and abstract of title in any loan had been executed and returned to the company, the commission for making the loan was due. On the determination of this fact depended the other questions in the case. The evidence on this point was conflicting, and, to reach the conclusion it did, the trial court must have decided it in favor of the defendant in error; and after a careful review of the evidence, we cannot say the finding was manifestly wrong, hence it will not be disturbed. (Scroggin v. Johnston, 45 Neb., 714.)

This action was commenced on the 8th day of June, and the mortgages were not received by the company until the 10th, and as the commission was not due, according to the finding of the trial court, until the reception of the mortgages by the company, the plaintiff had no cause of action when this suit was instituted. This being true, the judgment of the district court was right and must be

Affirmed.

Norval, J., not sitting.  