Bothell v. Miller

• Decision Date: 16 November 1910
• Docket Number: No. 16,181.,16,181.
• Citation: 128 N.W. 628,87 Neb. 835
• Parties: BOTHELL v. MILLER.
• Court: Nebraska Supreme Court

87 Neb. 835

128 N.W. 628

BOTHELL

v.MILLER.

No. 16,181.

Supreme Court of Nebraska.

Nov. 16, 1910.

Syllabus by the Court.

“Parties will as a rule be restricted in this court to the theory upon which the cause was prosecuted or defended in the court of original jurisdiction.” Smith v. Spaulding, 40 Neb. 339, 58 N. W. 952.

In an action upon a written acceptance or bill of exchange, a general denial puts in issue every material averment of the petition, and the affirmative is upon the plaintiff to prove the making and delivery of the identical instrument mentioned in the petition, and so continues to the close of the case.

The findings of the district court examined and set out in the opinion held sufficient to sustain the judgment.

Evidence examined and set out in the opinion held sufficient to sustain the findings of the district court.

Appeal from District Court, Cheyenne County; Grimes, Judge.

Action by Campbell Bothell against J. L. Miller. Judgment for defendant, and plaintiff appeals. Affirmed.Wright, Duffie & Wright, for appellant.

Williams & Williams and G. J. Hunt, for appellee.

FAWCETT, J.

From a judgment in favor of defendant in the district court of Cheyenne county, plaintiff appeals.

Plaintiff's action is based upon the following draft:

“Four months after date, pay to the order of J. M. Converse the sum of ninety-six and 75/100 dollars....................... $96.75 at 131-133 Wabash Ave, Chicago, Ill.

Value received, charge to account of

J. M. Converse.

To J. L. Miller, Bridgeport, Nebr.

[Stamped] Bridgeport Bank, Col 3050

Bridgeport, Neb.”

Indorsed across the left-hand end:

+-------------------------+
                ¦“Accepted.¦J. L. Miller. ¦
                +-------------------------+
                

[Customer sign here.]”

On the same day the draft is alleged to have been accepted, Converse indorsed it and sent it to his employer, the Rhode Island Manufacturing Company. The company subsequently indorsed and delivered it to plaintiff. The petition is in the ordinary form. The answer contains four paragraphs, the fourth of which was stricken upon plaintiff's motion. The three paragraphs remaining we will construe, as we think the parties upon the trial construed them, viz., as constituting a general denial and nothing more. A jury was waived and trial had to the court.

In their brief counsel for plaintiff say: “The main question in this appeal is whether the court had as a matter of law any right to admit or consider and base his judgment upon evidence tending to show fraud in the execution and delivery of the bill of exchange or draft for the collection of which this action was brought.” An examination of the bill of exceptions shows that plaintiff did not at any time during the trial object to any of the testimony offered upon the ground that it was not within the issues. On the contrary, the record shows that both sides went into the transaction had between Converse and the defendant at the time the alleged draft was accepted by the latter. Plaintiff took the deposition of Converse, in which he detailed all the particulars of the sale by him to defendant of a bill of jewelry and seven watches, the manner in which the draft was drawn, defendant's objection to signing it as first drawn, his explanation to defendant of the character of the paper, etc. Then, without any objection that the testimony offered was not within the issues, defendant testified in full as to the transactions in relation to the signing of a paper which defendant claims was simply an order, but which Converse testified was the draft in controversy. The parties having tried their case upon this theory, they cannot be permitted to change it now. In Smith v. Phelan, 40 Neb. 765, 770, 59 N. W. 562, 964, we said: “It is an established rule of this court that parties will be restricted to the theory upon which cases are prosecuted and defended in the trial court. Smith v. Spaulding, 40 Neb. 339 .” See, also, Civ. Code, § 138. But, even if plaintiff had interposed the objection that the testimony offered was not within the issues, the objection would not have been good, as this court is committed to the doctrine that in a suit of this character a general denial puts in issue every material averment of the petition, and the affirmative is upon the plaintiff to prove the making and delivery of the identical instrument mentioned in the petition, and so continues to the close of the case. Walton Plow Co. v. Campbell, 35 Neb. 173, 175, 52 N. W. 883, 16 L. R. A. 468;Gandy v. Estate of Bissell, 72 Neb. 356, 100 N. W. 803;Ohio National Bank v. Gill Bros., 85 Neb. 718, 721, 722, 124 N. W. 152.

The only points remaining are: Are the findings of the court sufficient to sustain the judgment, and is the evidence sufficient to sustain the findings of the court? In its findings the court, among other things, found: That “the defendant took seven watches at the agreed prices of $96.75, to be paid in four months, and upon the written provision or condition following: ‘Provided purchaser does not sell enough of these watches to pay the entire bill by January 1st, 1907, he may return all unsold that time in good order f. o. b. Chicago office.’ ” That, “if the defendant signed the bill of acceptance sued upon, it was because of some trick or deception on the part of the drawer, J. M. Converse. The defendant did not intend to sign such bill, and did not know that he had signed any such bill until its presentment by the Bridgeport Bank for payment. * * * The court does not believe that the bill sued upon was ever knowingly or intentionally delivered by the defendant. That the evidence fails to show the intention on defendant's part necessary to constitute a complete delivery of the bill sued upon. It is therefore adjudged that plaintiff has failed to sustain his cause of action, and this action is therefore dismissed at plaintiff's costs.” We think the findings of the court are sufficient to sustain the judgment.

After detailing the conversation with Converse which led up to the signing of the alleged draft, defendant testified: “He says: ‘We will just itemize them here upon the bill and put in the agreement and I will send it in.’ After that was all over, he says: ‘I have to straighten myself with the house if I leave these watches here because those are my samples, and I would not leave them, only I am going to make a run into the house and I will leave them and report this bill with them.’ He says: ‘I will have to have some signature to this to show that I have left them in your possession’--so h...