Barmby v. Wolfe

• Decision Date: 19 February 1895
• Parties: BARMBY ET AL. v. WOLFE.
• Court: Nebraska Supreme Court

44 Neb. 77

62 N.W. 318

BARMBY ET AL.

v.WOLFE.

Supreme Court of Nebraska.

Feb. 19, 1895.

Syllabus by the Court.

1. An assignment of error that the verdict is against the weight of the evidence is not good. The assignment must be that the verdict is not sustained by sufficient evidence.

2. Where a note is valid as between the original parties, a pledgee may recover the whole amount thereof, retaining any surplus as trustee for the party beneficially entitled; but, where the note is invalid as between the original parties, a bona fide pledgee may recover only the amount of his advances, provided there be no other party in interest.

3. It is not erroneous to instruct the jury that, while the defendants are competent witnesses, yet the jury have a right to take into consideration their interest in the result, and all the circumstances surrounding them, and give to their testimony only such weight as, in the judgment of the jury, it is entitled to.

4. Suit was brought on a note purporting to be signed by A. and wife. Evidence examined, and held sufficient to sustain the verdict against A., but insufficient to sustain the verdict against the wife.

Error to district court, Gage county; Babcock, Judge.

Action by William A. Wolfe against William Barmby and Emily H. Barmby. Judgment for plaintiff, and defendants bring error. Reversed.

Hardy & Wasson, for plaintiffs in error.

S. D. Killen and L. M. Pemberton, for defendant in error.

IRVINE, C.

Wolfe sued the plaintiffs in error, who are husband and wife, on a promissory note purporting to be signed by the plaintiffs in error, payable to the order of R. Holben, and by Holben indorsed to Wolfe as collateral security to a loan made by Wolfe to Holben. The Barmbys filed separate answers. There was a verdict against both. They filed separate motions for a new trial, which were overruled, and they bring the case here on separate petitions in error. We shall first consider the case of William Barmby. By his answer, he averred that, since the making of the note, it had been, without his consent, and fraudulently, altered by inserting words of negotiability, and by adding a clause whereby his wife pledged her separate estate. He then averred that the plaintiff was not the owner of the note, and pleaded a counterclaim, in support of which no evidence was offered, and which was evidently waived at the trial.

The first assignment of error is that the verdict is against “the great weight of evidence.” This is not a proper assignment. A verdict will not be set aside simply because it is against the weight of the evidence. The assignment of error in regard to a matter occurring on the trial must be for some matter for which the Code authorizes a motion for a new trial. The assignment in the motion for a new trial must be that the verdict is not sustained by sufficient evidence. Code Civ. Proc. § 314; Durrell v. Hart, 25 Neb. 610, 41 N. W. 551.

The next assignment is, in proper form, that the verdict is not sustained by sufficient evidence. We think it is. The evidence tends to show that Holben and Barmby made an exchange of land; that there was on the land to be conveyed to Holben a mortgage of $550; that this note was made to protect Holben against this mortgage. Barmby signed both his own and his wife's name to the note. The clause charging the wife's separate estate was inserted before the note was signed. The note contained words of negotiability when delivered to Holben. After its delivery to him, and before they separated, Barmby consulted a friend, who advised him that, inasmuch as the deeds could not be delivered for some time, the note should not be made negotiable. The words of negotiability were then struck out, but, Holben asserting that he did not like this proceeding, and that he wished to use the note, Barmby told him he could insert the words “or order” when the deeds were delivered. The deeds were delivered, and Holben restored the words of negotiability. There is also evidence tending to show that Barmby saw the note after the change had been made, and repeatedly promised to pay it. This testimony is by no means uncontradicted, but it was sufficient to sustain the verdict against Barmby.

The next assignment is that the verdict is excessive. This is based on the fact that the verdict was returned for the whole amount of the note, while the evidence showed that there remained unpaid to Wolfe on the debt for which the note stood pledged only about $80. In Haas v. Bank (Neb.) 60 N. W. 85, it was said: “It is quite well settled that, where a note is valid as between the original parties, the pledgee may recover the whole amount of the note, retaining any surplus as trustee for the party beneficially entitled; but, where the note is invalid as between the original parties, the pledgee may recover only the amount of his advances, provided there be no other party in interest. Wiffen v. Roberts, 1 Esp. 261; Allaire v. Hartshorne, 21 N. J. Law, 665; Bank v. Chapin, 49 Mass. 40;Bank v. Roberts, 45 Wis. 373.” This case falls in the former class. The defense was one which, if established, would defeat the note in the hands of an innocent holder. It is only where the plaintiff prevails merely because he is an innocent holder...