Butts v. Gunby

ELLISON, J. This action was instituted by plaintiff to recover part proceeds of money acquired by loans negotiated through defendants as agents for plaintiff. ■ The trial was without a jury and the court rendered judgment for plaintiff. It appears that plaintiff owned a farm in Ralls county, upon which parties in Shelby county held a mortgage, then about due. The moving cause of plaintiff’s connection with these defendants arose on account of thát mortgage. 'The Shelby county parties wanted their money and plaintiff engaged defendants to procure a loan for him from Bartlett Brothers, of St. Joseph, for $12,500, at six per cent interest. Defendants’ answer may be said to make an exhibit or statement of the dealing between them and plaintiff and of the various employments to obtain loans and of the expense they incurred in and about such employment. They embody a part of these in a claim for set-off or recoupment and ask judgment in various sums against the plaintiff. It seems there was delay in getting the loan from Bartlett Bros, and temporary loans were necessary in order to be able to settle with the Shelby county parties. Finally it was concluded that the money could not be had through the Bartletts and negotia [31] tions were taken up with others. But defendants represented to plaintiff that the Bartletts would charge $150 for a release of their contract to make the loan, and that sum was allowed to defendants, when in fact they only paid Bartletts $50. Charges were made by defen dants for obtaining a temporary loan when plaintiff contended that that service was a part of and was included in the contract for the principal loan. After the failure with Bartlett Bros, some negotiations were had with a loan company in Iowa and certain representations were charged to have been made by defendants to plaintiff which figured in the evidence to some extent. While there were other matters in the case as presented in the trial court, yet, principally, the contest came down to the following four items of charge made by defendants against plaintiff’s claim: “1st. A charge for exchange on a sight draft which defendants claimed they had paid to the Bank of Chillicothe, for plaintiff, $1.50; 2nd, a charge under date of July 12, 1906, for commission for securing a temporary loan from the People’s Savings Bank, $200; 3rd, as to $100 of a charge of $150 for securing from Bartlett Bros. L. & L. Go., a release of an application for a loan, $100; 4th, the charge for obtaining from W. E. Gunby, $7,500 loan, $150. Total, $451.50.” We are at a loss to understand what defendants could expect of this court by way of relief to them on this appeal. It is not an equity case, and yet the entire record is presented to us as though we should undertake to determine matters of fact, on the weight of evidence. The case was submitted to the trial court without a jury, in which case instructions count for nothing more than to show the theory on which the court proceeded.And there is little room for theory of Iuav since the whole case is one of facts. The trial court has determined them, with abundant evidence to support the result reached. [32] It is contended by the plaintiff that if certain of the evidence was believed, the trial court would have been justified in refusing to allow any of the claims of recoupment made by 'defendants. But as he has not appealed from the result reached by the trial court, we will not go into that question. Suffice it to say that so far as defendants’ appeal is concerned, it is without legal support, and the judgment is affirmed. All concur.