Bothell v. Schweitzer

• Citation: 120 N.W. 1129,84 Neb. 271
• Decision Date: 24 April 1909
• Docket Number: 15,648
• Parties: CAMPBELL BOTHELL, APPELLANT, v. HERMAN G. SCHWEITZER ET AL., APPELLEES
• Court: Supreme Court of Nebraska

120 N.W. 1129

84 Neb. 271

CAMPBELL BOTHELL, APPELLANT, v. HERMAN G. SCHWEITZER ET AL., APPELLEES

No. 15,648

Supreme Court of Nebraska

April 24, 1909

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

Burkett Wilson & Brown and E. F. Snavely, for appellant.

Morning & Ledwith, contra.

OPINION

ROOT, J.

Action by an indorsee of an accepted bill of exchange. Defense that said instrument had been altered after its delivery by detaching therefrom certain material conditions. There was judgment for $ 20, the amount due according to the entire contract between the drawer and acceptor, and plaintiff appeals.

1. The evidence discloses that Converse, the payee of the bill, who was also the drawer, sold defendants, who are country merchants, a bill of cheap watches, and secured the instrument in suit payable five months from its date. At the same time Converse executed and delivered to defendants a written agreement that, if sufficient of the watches were not sold within five months to pay the entire bill, they might return the unsold goods and receive credit at the invoice price. One of the defendants testified that they refused to sign the bill of exchange until a copy of Converse's agreement was glued thereto, and that their reason for this requirement was that they did not want the bill to get into the hands of an innocent purchaser who might cause them trouble. Converse admits making the agreement with defendants, but denies that it was ever attached to the bill of exchange; but the evidence is sufficient to sustain the jury's finding in favor of defendants on this point. Plaintiff's deposition was taken, and, although he denied notice or knowledge of any equities in favor of defendants, he did not state that the bill of exchange when purchased by him did not have attached thereto the agreement, nor deny detaching it himself. It may be questioned whether plaintiff's testimony was sufficiently specific to negative guilty knowledge on his part. Conceding, however, that plaintiff did not participate in nor have knowledge or notice of the separation of the agreement from the note, we are satisfied that the judgment should be affirmed. The note and the agreement were parts of the same transaction, and together measured the rights of the parties. The entire contract thus made did not absolutely bind defendants to pay the amount of the bill of goods, but only to pay in cash, at the end of five months, to the extent of the money received by them for the goods sold in the meantime, with the privilege of satisfying the remainder of the bill by the return in good condition of the watches then in their possession.

In Palmer v. Largent, 5 Neb. 223, although the case did not turn on that point, it was held that a memorandum written under a negotiable instrument, and qualifying it, is considered part of the contract, and, if fraudulently removed, will vitiate the note in the hands of a bona fide holder. In Davis v. Henry, 13 Neb. 497, 14 N.W. 523, it was decided that, if a contract referring to and qualifying a negotiable instrument is written on the same piece of paper with the note, and the former is detached without the maker's consent, the note will be void, even in the hands of an innocent purchaser. Professor Bigelow in his work on Bills, Notes and Cheques (2d ed.), p. 221, says that marginal terms, conditions and stipulations, which are intended to be part of the written contract, are treated by the better authorities as inseparable from the main writing to which the signature is given, and that no distinction is made by the better authorities between the alteration of the body of the note and detaching therefrom such marginal agreements. In either case the note is rendered void. See, also, Gerrish v. Glines, 56 N.H. 9; Stephens v. Davis, 85 Tenn. 271, 2 S.W. 382, more fully reported in 2 S.W. 382; Scofield v. Ford, 56 Iowa 370, 9 N.W. 309; Wait v. Pomeroy, 20 Mich. 425.

Plaintiff relies on ...