77. (1895.) Where a broker undertakes to sell real estate in consideration of a suit of clothes to be worth fifty dollars, and there is a tender of a suit of clothes at the time, which tender is kept good, the plaintiff cannot recover. Mayer v. Ver Bryck, 46 Neb. 221 (64 N. W. 691).

78. (1896.) In an action to recover a brokers commission under a contract to exchange landd, a defect in the title to the land offered in exchange is as good a defense as would be proof that the purchaser produced had no means of buying. Zittle v. Schlesinger, 46 Neb. 844 (65 N. W. 892).

Evidence.

Burden of proof.

79. (1895.) Plaintiff in an action to recover for services in effecting an exchange of defendant's property must show by a preponderance of the evidence that he was employed by defendant. Strawbridge v. Swan, 43 Neb. 781 (62 N. W. 199).

80. (1907.) To entitle a recovery on a contract of brokerage for the purchase of real estate, it is essential that the broker establish that he procured a valid conveyance of the real estate, or an enforceable contract of sale of the same, before he is entitled to the commission stipulated in his contract with the purchaser. Bolton v. Coburn, 78 Neb. 731 (111 N. W. 780).

81. (1906.) Το entitle a real estate broker to recover a commission for the sale of real estate he must prove a sale of the land on such terms as would entitle him 10 a commission under the provisions of a written contract between himself and the owner. Tracy v. Dean, 77 Neb. 382 (109 N. W. 505).

Admissibility.

82. (1892.) In an action to recover commissions for selling real estate, the defendant denied plaintiff's employment, or that he was instrumental in making the sale, and averred that it was negotiated by persons other than the plaintiff. It is incompetent to ask the buyer of the property, from whom he purchased and upon whose representations he relied in doing So. Burkholder v. Fonner, 34 Neb. 1 (51 N. W. 293).

83. (1894.) In an action to recover a commission for procuring a purchaser to certain realty, the action being upon a quantum meruit, and plaintiff testified that his services were worth a certain sum, it

is not error to admit, without objection testimony as to the customary compensation to such brokers. Shields v. Gamble, 42 Neb. 850 (61 N. W. 101).

84. (1894.) In establishing the contract between the broker and his principal the parties are not bound by the terms of the written contract between the principal and purchaser, although it may evidence a portion of the broker's contract. In such a case parol evidence may be introduced, even if it operate to contradict or vary the terms of the written contract between the principals. Barber v. Hildebrand, 42 Neb. 400 (60 N. W. 594).

Weight and sufficiency.

85. (1887.) Where a real estate broker brought an action to recover commissions for a completed sale of real estate, and the testimony showed that he had merely prooured a purchaser, who afterwards purchased such real estate from the owner. Held, That the action was one to recover upon a quantum meruit-the value of the services rendered, but as no objection had been made to the testimony, the judgment will be sustained. Gregg v. Loomis, 22 Neb. 174 (34 N. W. 355). 86. (1890.) In action by broker for commission evidence examined and held to sustain judgment for plaintiff. Seeley v. Smith, 29 Neb. 545 (45 N. W. 922).

87. (1891.) In an action by a real estate agent to recover commissions for the sale of a house and lot belonging to the defendant there is but little conflict in the testimony, and a clear preponderance thereof sustains the plaintiff's claim for a commission. Held, That the judgment was right and is affirmed. Tubbs v. Mackintosh, 31 Neb. 238 (47 N. W. 854).

88. (1891.) Action for commission; verdict for $112.50, as commission on sale for $3,500, found to be sustained by the evidence. Wasmer v. Lean, 32 Neb. 519 (49 N. W. 463).

89. (1892.) Evidence held to sustain finding that plaintiff had been a moving cause in effecting the sale of the property in question, and hence was entitled to a commission therefor. St. Felix v. Green, 34 Neb. 800 (52 N. W. 821).

90. (1893.) One S., being the owner of certain real estate, executed a power of attorney to one H., authorizing him to sell the land, for either cash or partly on credit, for not less than $20 per acre. H. being

unable to sell at $20 per acre, afterwards sold the land, subject to the approval of his principal, for $2,000 cash. Held, That the weight of the testimony sustained the finding and judgment of the court that the principal had ratified and confirmed the sale. Prine v. Syverson, 37 Neb. 860 (56 N. W. 714).

91. (1894.) Evidence held sufficient to prove a contract hiring plaintiff as broker to sell certain bank stock, and that plaintiff had made a sale thereof. Blakeslee v. Ervin, 40 Neb. 130 (58 N. W. 850).

92. (1894.) In an action for a broker's commission for the sale of real estate, which agency was denied, evidence showing that the defendant asked plaintiff, a real estate broker, what he had for sale, plaintiff suggested certain lands and wrote to the owner and another agent, held to sustain a verdict for plaintiff. Shields v. Gamble, 42 Neb. 850 (61 N. W. 101).

93. (1898.) Evidence in an action by a real estate broker to recover his commission from the owner of real land who has refused to convey to a purchaser sustains a finding for plaintiff. Lunney v. Healy, 56 Neb. 313 (76 N. W. 558; 44 L. R. A. 593).

94. (1905.) Under the evidence, held, that a real estate broker has no just cause for complaint of an allowance to him of $300 as commission for services in the exchange of properties. Lucas v. County Recorder of Cass County, 75 Neb. 351 (106 N. W. 217).

95. (1907.) Evidence examined, and held insufficient to show a right of plaintiff to recover commissions as broker for the sale of real estate. Bolton v. Coburn, 78 Neb. 731 (111 N. W. 780).

96. (1906.) Correspondence set out in the opinion held insufficient to entitle the plaintiff to recover a commission. Tracy v. Dean, 77 Neb. 382 (109 N. W. 505).

Instructions.

97. (1885.) Where there was evidence tending to show that the plaintiff rendered no services whatever in effecting a sale of real estate, an instruction to the effect that if the jury should so find the plaintiff would not be entitled to recover is based upon evidence in the case, and is not inconsistent with the instruction that if he did render some service, he is entitled to recover on a quantum meruit. McMurtry v. Madison, 18 Neb. 291 (25 N. W. 85).

98. (1885.) In an action for compensa

tion an instruction that plaintiff is entitled to recover, if at all, "such sum as you believe from the evidence his services were reasonably worth according to the usual and customary mode of charging for such services among real estate agents at the time and place such services were rendered," held proper. Lansing v. Johnson, 18 Neb. 174 (24 N. W. 726).

99. (1891.) Instructions in action by broker for commissions, held erroneous. Marshall v. Goble, 32 Neb. 9 (48 N. W. 898).

100. (1892.) Instructions to find for plaintiff in case the jury found he consummated a sale of realty held applicable to the evidence. St. Felix v. Green, 34 Neb. 800 (52 N. W. 821).

101. (1895.) In an action by a real estate broker to recover on a special contract for procuring a purchaser, the contract having been made by one alleged to be the agent of the owner and the authority of the agent being one of the issues, the court properly refused an instruction stating that the plaintiff was entitled to recover if he was employed by the owner or some one acting for her without stating that such person must be authorized to so act. Funk . Latta, 43 Neb. 739 (62 N. W. 65).

102. (1897.) Instructions in an action for a broker's commission held not errone ous. Stewart v. Smith, 50 Neb. 631 (70 N. W. 235).

103. (1898.) Instructions held correct in an action by real estate agents for com mission for making a sale. Traynor v. Morse, 55 Neb. 595 (75 N. W. 1103).

104. (1902.) In an action by a broker, for commissions alleged to be due for procuring a purchaser of real estate, the instructions examined, and held properly given. Huffman v. Ellis, 64 Neb. 623 (90 N. W. 552).

105. (1902.) Where party claims com pensation as real estate broker for procur ing a purchaser of lands and no exclusive right of sale was claimed, an instruction to the effect that the seller had a right to trade his own property, and that if the broker was not instrumental in bringing about the making of a contract, he could recover no commission on it, held proper. Buck v. Hogeboom, 2 Unof. 853 (90 N. W. 635).

BUCKET SHOPS.

Recovery of money lost in, see Gaming. §§ 25-29.

sufficient clearness indicates the subject of legislation. Nebraska Loan & Building Ass'n v. Perkins, 61 Neb. 254 (85 N. W. 67).

7. (1901.) Chapter 11, General Statutes of 1873, entitled "An act to enable associations of persons for raising funds to be loaned among their members for building them homesteads and other purposes, become bodies corporate," is not unconstitutional. Chadron Loan & Building Ass'n v. O'Linn, 1 Unof. 1 (95 N. W. 368).

By-bidding by officers.

to

8. (1902.) Loans by the association must be open to competitive bidding, and by-bidding by the officers or agents of the association for the purpose of increasing the premium to be paid for loans, will not be tolerated. South Omaha Loan & Building Ass'n v. Wirrick, 63 Neb. 598 (88 N. W. 694).

Deducting premium from loan.

9. (1902.) A building and loan association may deduct from a loan made to one of its members the premium bid for the right of precedence in taking such loan. South Omaha Loan & Building Ass'n v. Wirrick, 63 Neb. 598 (88 N. W. 694).

Subscription to stock.

10. (1894.) One to whom stock is issued, who pays assessments thereon, acts as an officer and takes part in management of corporation, is estopped to deny his subscription. York Park Building Ass'n v. Barnes, 39 Neb. 834 (58 N. W. 440).

11. (1896.) In a suit for money paid for stock, and to cancel the subscription contract on account of false and fraudulent representations of defendant's agent, the surrender of the stock is a condition precedent to the right to rescină, in absence of evidence that the stock is worthless. Building & Loan Ass'n of Dakota v. Cameron, 48 Neb. 124 (66 N. W. 1109). Validity of contract in general.

12. (1902.) Contracts in which a corporation, in consideration of stated payments made to it, makes promises, which are the main inducement to such contracts, and are impossible to perform, are unlawful, being against public policy. State, ex rel. Prout, v. Nebraska Home Co., 66 Neb. 349 (92 N. W. 763; 103 Am. St. Rep. 706; 60 L. R. A. 448).

of its contracts in the purchase of homes and in payment of the same, where under its scheme some of the contributors can ob tain no assistance for more than seventy years, are unlawful, as against public pol icy. State, ex rel. Prout, v. Nebraska Home Co., 66 Neb. 349 (92 N. W. 763; 103 Am. St. Rep. 706; 60 L. R. A. 448).

Contracts with foreign association.

14. (1901.)

A contract made in this state, with a resident thereof, by a foreign building and loan association, which has failed to first procure a certificate or ap proval and authorization from the proper officers for transacting business in this state, is void and unenforceable, though the parties to such contract may have stipulated therein that it should be governed by the laws of the state where the offending association is resident. Henni v. Fidelity Building & Loan Ass'n, 61 Neb. 744 (86 N W. 475; 87 Am. St. Rep. 519).

15.

(1901.) A contract made in this state with a resident thereof by a foreign building and loan association which has failed first to procure a certificate of ap proval and authorization from the proper officers for transacting business in this state, is void and unenforceable in cur courts. Pioneer Savings & Loan Co. v. Ever. 62 Neb. 810 (87 N. W. 1058).

16. (1901.) The policy of this state, as announced by the legislature, is to prohibit the transaction of business by foreign building and loan associations, unless duly au thorized by the proper authorities. Henni

Fidelity Building & Loan Ass'n. 61 Neb. 744 (86 N. W. 475; 87 Am. St. Rep. 519).

17. (1901.) In the absence of usury, fraud, or other illegality, a contract with a foreign building and loan association will be enforced according to an equitable interpretation of its terms. People's Building, Loan & Savings Ass'n v. Gilmore, 1 Unof. 181 (90 N. W. 108).

18. (1902.) When a member of a socalled mutual loan association, not incorporated under the laws of this state, borrows money of the society at an agreed rate of interest and surrenders to the so^iety his shares of stock therein, and stipulates to continue the payment of monthly dues upon such shares, such stipualtion is without consideration and is void, and the borrower's obligations to the association are discharged by the repayment of the loan with interest at the agreed rate. Kear

v. Eastern Building & Loan Ass'n, 2 Unof. $95 (90 N. W. 643).

19. (1906.) A contract with a foreign building and loan association authorized to transact business in this state at the time the contract is made does not become unenforceable by reason of the failure of the association to renew its authority to transact business in the state. Eastern Building & Loan Ass'n v. Tonkinson, 76 Neb. 470 (107 N. W. 762).

What law governs.

20. (1903.) Contracts made in this state, by residents of this state, with foreign building and loan associations, such contracts being made through agents of such associations located in this state, are Nebraska contracts, and their construction, validity and enforcement are governed by the laws of this state. National Mutual Building & Loan Ass'n v. Retzman, 69 Neb. 667 (96 N. W. 204).

21. (1901.) A contract executed in this state by a New York building and loan association, on property in this state, is a Nebraska contract, and the construction and validity is to be governed by laws of this state. People's Building, Loan & Savings Ass'n v. Parish, 1 Unof. 505 (96 N. W. 243) 22. (1902.) Contracts made in Nebraska, with residents of this state, by a foreign building and loan association, if made by agents of such associations within this state, are Nebraska contracts; and by their construction, validity and enforcement are governed by the laws of this state. People's Building, Loan & Savings Ass'n v. Shaffer, 63 Neb. 573 (88 N. W. 669). Recovery of premiums.

23. (1894.) Action by stockholder to recover back payments on his shares, on ground that company refused to make a rromised loan; judgment for plaintiff affirmed, and order requiring plaintiff to file rertificate of stock with clerk for cancelation and delivery to defendant approved. American Building & Loan Ass'n v. Mordock, 39 Neb. 413 (58 N. W. 107).

Interest and usury.

Rate of interest chargeable. 24. (1878.) Persons associated and incorporated under section 123 and subsequent sections of chapter XXV of the Revised Statutes of 1866, for the transaction of lawful business, have no authority as a corporation to charge and receive interest on

loans made by them, to exceed the maximum rate allowed by law; and all loan contracts made by such corporation for interest in excess of the rate fixed by law, are affected with the vice of usury. Lincoln Loan & Savings Ass'n v. Graham, 7 Neb. 173.

25. (1896.) The act of 1873 authorized associations created thereunder to collect money by stated dues, fines, interest, and by premiums bid by members for the right of precedence in taking loans. It also provided that the dues, fines, and premiums, although in excess of legal interest, shall not be construed to make the loan usurious. Held, That interest might be reserved at the highest rate permitted by law on the face of the loan, although the premium was deducted from that amount and the difference only paid the borrower. Livingston Loan & Building Ass'n v. Drummond, 49 Neb. 200 (68 N. W. 375).

26. (1902.) A contract which provides for the payment of 6 per cent. interest, payable monthly, on a loan of $1,500, and also provides for a "premium" of $1,500, to be paid by the borrower by taking stock in that amount in a foreign corporation which has not complied with our statute regulating building and loan associations, and making monthly payments on said stock of $9 each until the same is matured, is usuriAnselme v. American Savings & Loan Ass'n, 66 Neb. 520 (92 N. W. 745).

Gus.

27. (1904.) The loan made to the appellee in this case held to be tainted with usury. Clarke v. Woodruff, 72 Neb. 286 (100 N. W. 314).

Determining usurious contract.

28. (1906.) In determining whether a contract with a foreign building and loan association is usurious, it is proper to consider only such payments contracted for as are in the nature of interest and premiums on the loan. Eastern Building & Loan Ass'n v. Tonkinson, 76 Neb. 470 (107 N. W. 762).

Foreign association.

29. (1898.) In foreclosure by a foreign building and loan association the rate of interest is not regulated by chapter 14, Session Laws of 1891, which relates solely to domestic associations. National Mutual Building & Loan Ass'n v. Keeney, 57 Neb. 94 (77 N. W. 442).

30. (1899.) A foreign building and loan association is subject to the penalties of the statute against usury. Building & Loan Ass'n of Dakota v. Bilan, 59 Neb. 458 (81 N. W. 308).