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IN THE SUPREME COURT OF THE STATE OF NEBRASKA for you to make the corrections. Frank Duggins, STATE EX REL SPILLMAN V. SECURITY STATE age 34, rate $39.84, and you charged him the disBANK F EDDYVILLE. COMMONWEALTH ability twice and you will please refund him $1.78 LIFE INS. CO. CLAIMANT). as the disability is included in the rate book at the stated age. James C. O'Meara, age 32, rate $38.33, No. 25096-State Ex Rel Spillman V. Security and you charged him at the age 35 also charging State/ Bank of Eddyville. (Commonwealth Life Ins. him the disability twice and you will see that his Co. Claimant). Filed June 9, 1927. rate should be $38.33, so you will please refund him Where money purporting to be a deposit is the difference between $40.65 and $38.33 which is placed in a state bank, for which the bank issues and $2.32 plus $1.72, which is the disability charged delivers to the purported depositor certificates of detwice making a total refund to him of $4.04. posit in terms providing for payment of 5 per cent. "I am also inclosing our draft No. 36783 for annual interest, and where, by an understanding be$1,000 and you will please send in a C/D for $1,000 tween the parties, the bank pays to such person a at 5% and a draft for $7.50 making the interest bonus above the lawful rate of 5 per cent. interest, 61/2% as per our arrangement. I will see you a held that such transaction does not constitute a deweek from today and trust that you will have a nice posit within the meaning of the bank depositors' line for me to work on. Again thanking you for guaranty act, but is a mere loan of money to the the business written this week I beg to remain, bank. Comp. St. 1922, Sec. 8008. Yours truly, Heard before Goss, C. J., Rose, Dean, Day, Good. "(Signed) M. Goldsmith. District Agent." Thompson and Eberly, JJ. Robert O'Meara, cashier of the bank, testified DEAN, J. that Goldsmith was the first man with whom arThe district court for Dawson county disallowed rangements were made whereby he, the cashier, was a certain claim of the Commonwealth Life Insurance to write insurance for claimant on a commission baCompany, hereinafter called claimant, against the sis, and that the arrangement was that claimant depositors' guaranty fund for $5,351.86, with 5 per would deposit the money received for insurance cent. yearly interest, from January 1, 1923, for premiums and that it was to be left in the bank. money deposited by claimant in the lately failed SeBut he testified that some of this money was sent to curity State Bank of Eddyville, hereinafter called the the bank from Omaha and some was deposited perbank. From this disallowance of its claim an appeal sonally by Goldsmith. But it is contended that Goldhas been prosecuted by claimant. smith was not an authorized agent of the claimant It appears that there was an arrangement beMr. Uehling, however, former president of the Comtween the claimant and the bank by which assistance monwealth Life Insurance Company, testified that was to be rendered by the bank's officers to the any business relations between the Commonwealth claimant's agents, in the Eddyville vicinity, to proand the bank might have been instigated by Goldcure life insurance for claimant and, in consideration smith, and that after Goldsmith had made some overof such assistance, the claimant was to maintain tures and negotiated some business it was taken certain of its deposits in the bank. up with the Omaha office. He denied that there was In behalf of the state the attorney general arany agreement made with the bank by which they gues that, during the period in which the transacwere to receive more than 5 per cent. interest, but, tions happened out of which the claim arose, there apparently on reflection on this point, Mr. Uehling was a "fraudulent agreement between the officers lestified: "Q. There might have been, however, of the bank and the officers of the insurance comMr. Uehling, without your knowledge? A. There pany for interest in excess of 5 per cent. by reason might have been, yes, sir." whereof the funds left with the bank constituted a Counsel for the bank, on page 49 of his brief, loan and not a deposit." And the district court so argues: "Even though by some strange process of found and decreed by its judgment. While the claim reasoning this alleged excess interest agreement was allowed as a general claim against the receiver upon which the receiver so confidently relies could of the bank, the claimant was not, of course, reimDC considered in force down to the closing of the bursed from the depositors' guaranty fund. Hence bank, such fact would not change the rights of this this suit. claimant in the slightest particular. Because the George C. Gage was a bank examining agent for evidence shows that no excess interest was paid after the bank receiver and he testified that the bank recJune, 1921, and said section (8008) prohibits the ords disclosed that a bank certificate of deposit for paying of excess interest and not the mere request $500, dated on or about April 30, 1921, was issued or agreement for excess interest." But the letter to claimant, and that, under the same date, an exvritten by Goldsmith to the cashier of the bank, pense item of $3.75 was charged to the bank in suit, "after June, 1921," appears to bear directly on the and that this $3.75 item represented excess interest facts before us and it is apparently inconsistent which was paid by the bank to claimant for the dewith the argument of counsel. The letter follows: posit. He testified that the bank records showed "February 2d, 1922 other like instances. In corroboration of his stateMr. Robert O'Meara, ment the witness produced a letter from M. Gold"Eddyville, Nebr. smith, claimant's agent, written on claimant's letter"Dear Bob: head to the cashier of the bank. The letter follows: "Your letter of the 1st at hand and contents "April 30th (1921)
"Mr. Robert O'Meara, "Security State Bank, Eddyville, Nebr. "Dear Friend Bob: "Attached please find check for $500 for which please send the company a C/D bearing 5% and a draft for the additional interest $3.75. Mr. Parker promised me another $500 at least next week and I will send it then. Trusting this will meet with your approval and I will get the rest as fast as possible. Yours truly, "(Signed) Milton Goldsmith." Gage also testified that another certificate of deposit for $1,000, dated March 14, 1921, was issued to claimant and, under the same date, and expense item of $7.50 was charged to the bank, and this $7.50 item represented excess interest paid by the bank for the deposit. In this he was corroborated by a letter from Goldsmith to the cashier of the bank. The letter follows:
"March 14th, 1921
"Mr. Robert O'Meara, "Security State Bank, "Eddyville, Nebr. "Dear Friend: "On your business mailed into the office for
