Barnes v. Van Keuren & Floyd

Decision Date13 January 1891
Citation47 N.W. 848,31 Neb. 165
PartiesA. E. BARNES ET AL. v. VAN KEUREN & FLOYD
CourtNebraska Supreme Court

ERROR to the district court for Dixon county. Tried below before POWERS, J.

REVERSED AND REMANDED.

John B Barnes, for plaintiff in error, cited, contending that the petition should have been made more definite and certain by attaching copies of the notes: Code, sec. 124; Dorrington v. Meyer, 8 Neb. 214; Ryan v. State Bank, 10 Id., 527. That the signatures of co-makers, after the delivery of the note, require a new consideration: 2 Randolph, Com. Paper, sec. 446; Green v. Shepherd, 5 Allen [Mass.], 589; Clopton v. Hall, 51 Miss 482; Briggs v. Downing, 48 Iowa 550.

G. L Wood, and Davis & Gantt, contra, after distinguishing the case at bar from Briggs v. Downing, supra, cited, as to the motion to make the petition more definite and certain: Maxwell, Pl. & Pr. [4th Ed.], 183; Code, sec. 129.

OPINION

NORVAL, J.

This action was brought in the district court of Dixon county by Van Keuren & Floyd on three promissory notes, signed by W. T. Chapman, A. E. Barnes, A. Reynolds, and J. B. Barnes. Judgment was rendered for the plaintiff, and all but Chapman prosecute a petition in error.

Two questions are presented for our consideration: First--Did the court err in overruling the motion of defendants to require the plaintiff to attach copies of the notes to the petition? Second--Did the court err in sustaining the demurrer to the answer?

The petition contains three counts, each based upon different promissory notes. Each count alleges the making and delivery of a note, sets out a copy of the same, alleges that no part thereof has been paid, and avers the amount due thereon from the defendants to the plaintiff. This was sufficient. It was not necessary to attach copies of the notes to the pleading. The petition was framed under the provisions of section 129 of the Code, which provides that "In an action, counter-claim, or set-off, founded upon an account, promissory note, or bill of exchange or other instrument, for the unconditional payment of money only, it shall be sufficient for the party to give a copy of the account or instrument, with all credits and indorsements thereon, and to state that there is due to him on such account or instrument, from the adverse party, a specified sum, which he claims with interest." A copy of the instrument sued on is only required to be attached to the pleading, when it is not copied into the pleading. (Gage v. Roberts, 12 Neb. 276, 11 N.W. 306).

The defendants, A. E. Barnes, A. Reynolds, and J. B. Barnes, answered for themselves, admitting the signing of the notes and denying every other allegation of the petition. The answer also alleges, in substance, that the answering defendants signed the notes as sureties for the defendant W. T. Chapman, without any consideration therefor, at the special instance and request of the plaintiff; that the principal maker of the notes never requested the defendants to sign the same, but that the same was done for the plaintiff's accommodation after the delivery of the notes by the principal maker thereof.

A general demurrer to the answer was sustained.

It is essential to the validity of a promissory note that it be based upon a sufficient consideration; something that is either of advantage to promisor or prejudice to the promisee. Testing the allegations of the answer by this elementary rule, are the sureties upon the notes bound? We think not. The notes had already been executed and delivered by Chapman, the principal maker, when they were signed by the sureties. Had they signed before their delivery, the consideration, moving to the principal maker, would have been sufficient to uphold the promise of the sureties. Having executed the notes after their delivery, the undertaking of the sureties was a collateral one, requiring a new consideration to give it validity. There being no new consideration, the notes cannot be enforced as against the sureties. (Kansas Mfg. Co. v. Gandy, 11 Neb. 448, 9 N.W. 569.) In the cited case one J. L. Gandy gave his note to the plaintiff September 16, 1878. In December following its delivery Gandy's wife gave a mortgage on her real estate to secure the note. There being no extension of the time of payment, nor any new consideration, it was held that the mortgage was invalid.

The position of the plaintiff is, that the sureties having signed the notes without the knowledge or consent of the principal debtor, was a material alteration of the instruments,...

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1 cases
  • Barnes v. Vankeuren
    • United States
    • Nebraska Supreme Court
    • January 13, 1891
    ... ... L. Wood and Davis & Gantt, for defendants in error.NORVAL, J.This action was brought in the district court of Dixon county by Vankeuren & Floyd on three promissory notes signed by W. T. Chapman, A. E. Barnes, A. Reynolds, and J. B. Barnes. Judgment was rendered for the plaintiff, and all but ... ...

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