Buck v. Davenport Sav. Bank

• Decision Date: 29 April 1890
• Citation: 45 N.W. 776,29 Neb. 407
• Parties: BUCK v. DAVENPORT SAV. BANK.
• Court: Nebraska Supreme Court

29 Neb. 407

45 N.W. 776

BUCK

v.DAVENPORT SAV. BANK.

Supreme Court of Nebraska.

April 29, 1890.

Syllabus by the Court.

1. A writing on the back of a negotiable promissory note, “Demand, notice, and protest waived, and payment guarantied,” signed by the payee of the note, is an indorsement with enlarged liability.

2. A description in a chattel mortgage: “95 head of steers, one year old this spring, marked as follows: Right ear cropped, and notch cut out of the under side of the left,--being the said cattle I have this day purchased of Welcome Mowry, being all the cattle I have now thus marked. Said cattle are to be kept in Seward Co., Neb., except during the herding season, in which they are to be kept in Butler Co., Neb.,”--is sufficient.

3. A description of property in a chattel mortgage which will enable a third person, aided by inquiries which the instrument itself suggests, to identify the property, ordinarily, will be sufficient.

Error to district court, Seward county; NORVAL, Judge.G. M. Lambertson and R. P. Anderson, for plaintiff in error.

R. S. Norval, for defendant in error.

MAXWELL, J.

In May, 1887, one Welcome Mowry sold and delivered to Thomas J. Johnson, a resident of Seward county, 95 head of yearling steers, for the sum of $1,591.25, taking his negotiable note therefor, due in one year, with interest at 10. per cent. To secure the payment of this note, Johnson executed and delivered to Mowry a chattel mortgage upon the steers so sold; the description thereof in the mortgage being: “95 head of steers, one year old this spring, marked as follows: Right ear cropped, and notch cut out of the under side of the left,--being the said cattle I have this day purchased of Welcome Mowry, being all of the cattle I have now thus marked. Said cattle are to be kept in Seward Co., Neb., except during the herding season, in which they are to be kept in Butler Co., Neb.” This mortgage was duly filed for record in Seward county on June 4, 1887. In October of the same year, Johnson sold said cattle to certain parties, named Spelts and Nye, for the sum of $450. The latter parties sold a portion of the cattle to the plaintiff in error. In June, 1887, Mowry sold and indorsed the note in controversy and transferred the same to the defendant in error; the indorsement being as follows: “Demand, notice, and protest waived, and payment guarantied. WELCOME MOWRY.” The note not being paid, the bank brought an action of replevin against the plaintiff in error and others holding the stock, and on the trial recovered judgment for the possession thereof, and for damages.

Two questions are presented by the record: First. Is the writing on the back of the note an indorsement, or merely a guaranty? In Heard v. Bank, 8 Neb. 10, the writing on the back of the note was as follows: “For value received, I hereby guaranty payment of the within note, and waive presentation, protest, and notice.” This was held to be an indorsement with an enlarged liability. Bank v. Haylen, 14 Neb. 480, 16 N. W. Rep. 754. The writing on the back of the note in question, therefore, was a valid indorsement with an enlarged liability.

In Wiley v. Shars, 21 Neb. 712, 33 N. W. Rep. 418, the property mortgaged was described as “23 head of horses and mules, * * * all situated on their range on the South Loup river. * * * Above-described chattels now are in their [[[the mortgagors'] possession, and are owned by them.” The testimony showed that the range in question was situated in Buffalo county, and the description was held sufficient. In Knapp v. Deitz, 24 N. W. Rep. 471, the description was: “41 Berkshire hogs and 65 grain sacks.”...