Camp v. Sturdevant

• Decision Date: 19 November 1884
• Citation: 21 N.W. 449,16 Neb. 693
• Parties: CAMP v. STURDEVANT.
• Court: Nebraska Supreme Court

16 Neb. 693

21 N.W. 449

CAMP

v.STURDEVANT.

Supreme Court of Nebraska.

Filed November 19, 1884.

Error from Fillmore.

J. W. Eller and J. H. Rushton, for plaintiff.

J. P. Maule, for defendant.

COBB, C. J.

This action in the court below was brought on a bank-check, drawn by the plaintiff in error on the Fillmore County Bank, payable to the order of P. D. Sturdevant, (defendant in error.) This check was presented to the bank, and payment refused, of which the drawer had due notice. Under the circumstances of the case, neither the time of presentation nor the reason why payment was refused is material. The defense was that the drawer of the check received no value therefor. This defense was proved by the testimony of the plaintiff in error, and the facts sworn to by him are uncontradicted. There can be no doubt, under the law, that, had Camp signed this check and handed it directly to Sturdevant, without any consideration, that the plea of want of consideratlon, if made and proved, would be a complete defense. It appears from the testimony of both parties that the check was, in fact, handed by Camp to one Amos Herr, by whom it was delivered to Sturdevant. Had the check been made payable to Herr upon its face, then its possession by him would have been evidence of ownership, and had he indorsed and delivered it to Sturdevant for value then that consideration would in a sense flow back to, and be chargeable to, the drawer, and the defense of want of consideration would avail him nothing. But the possession by Herr of this check, payable as it was “to the order of P. D. Sturdevant,” was no evidence to anybody, certainly not to Sturdevant, of property in the check on the part of Herr. To him it was evidence that the possession of Herr was that of a mere messenger. It cannot be, therefore, that any of the principles of law applicable to commercial paper can be held to control this case.

On the trial the court charged the jury as follows: “(3) If the jury believe from the evidence that the defendant made and delivered the check in question to one Amos Herr, to enable him, Herr, to obtain money or credit thereon, the defendant is liable thereon, although Amos Herr may have deceived the defendant as to the use he would make of the check.” I do not think that this charge states the law correctly. If the charge is to be considered as based upon the facts as testified to by the defendant in error, then it in effect tells the jury that the naked possession of the check, payable to the order of P. D. Sturdevant, was a fact from which they might find that “the defendant (Camp) made and delivered the check in question to one Amos Herr to enable him, Herr, to obtain money or credit thereon.” I do not think that such purpose is sufficiently evidenced by the language of the check, or by its naked possession by Herr. When on the stand as a witness on his own behalf, the plaintiff was asked the following question by his counsel: “ Question. Just tell the jury upon what conditions you took that check.” To which the defendant objected “to the witness stating any conditions unless connected with the defendant and known to him, for the reason that it is irrelevant, immaterial, and hearsay;” which objection was overruled by the court. Whereupon the plaintiff answered as follows: “Along the first days of October, Mr. Herr came into my office and represented that he could get a check of Mr. Camp upon the Fillmore County Bank, allowing that I could cash that check and hold it a few days, till the next week, which I agreed to do, and had cashed other of Mr. Camp's checks, and when I sent other collaterals into the bank I sent them along with it. I paid that and the $200 check, and held it as long as I agreed to, and longer yet, for the reason that I was very busy, and I held it for several days, and spoke to Mr. Camp that I wanted to send these in, and he says, ‘Don't do that, for the trade had not been completed, and the money was not there;’ and I held the check a short time longer, and continued to hold it and to speak to Mr. Camp about it until some time about the first of December, when I first presented the check to Mr. Chase; perhaps longer than that,--I didn't make a note of it. Payment was refused at that time I presented the check to the bank.”

The overruling of the defendant's objection to the question which...