City Nat. Bank of Hastings v. Thomas

• Decision Date: 21 January 1896
• Citation: 65 N.W. 895,46 Neb. 861
• Parties: CITY NAT. BANK OF HASTINGS ET AL. v. THOMAS.
• Court: Nebraska Supreme Court

46 Neb. 861

65 N.W. 895

CITY NAT. BANK OF HASTINGS ET AL.

v.THOMAS.

Supreme Court of Nebraska.

Jan. 21, 1896.

Syllabus by the Court.

1. When a bill of exceptions has been quashed, it cannot be afterwards considered for any purpose in the case. Jones v. Wolfe, 60 N. W. 563, 42 Neb. 272, followed.

2. In reviewing a judgment on petition in error without a bill of exceptions, this court is necessarily confined, in an examination of instructions, to an inquiry whether the instructions given could under any circumstances be properly given under the pleadings. The refusal of instructions cannot be reviewed.

3. The repetition of a proposition of law in the court's charge is not reversible error, unless it be made to appear that the defeated party was prejudiced thereby.

4. A party entitled to an estoppel need not in all cases formally plead the estoppel. If the facts constituting the estoppel are in any way sufficiently pleaded, he is entitled to the benefit of the law arising therefrom.

5. Possession of instruments negotiable by delivery is prima facie evidence of ownership.

6. A person purchasing negotiable paper from the president of a bank, with a guaranty of payment executed by the president, is justified in relying on the president's representation that the paper belonged to the bank; and the bank is bound by his representation to that effect, at least where the transaction occurred in the banking house, and while the president was apparently engaged in performing his duties as such officer.

7. Certain instructions examined, and held not erroneous as applied to the case under consideration.

Error to district court, Adams county; Beall, Judge.

Action by Joseph Thomas, trustee, against the City National Bank of Hastings and Richard H. Lymer, receiver. Judgment for plaintiff. Defendants bring error. Affirmed.M. A. Hartigan, for plaintiffs in error.

Capps & Stevens, for defendant in error.

IRVINE, C.

This case was before the court in 1894, and the judgment of the district court therein was reversed. Thomas v. Bank, 40 Neb. 501, 58 N. W. 943. On a new trial in the district court, there was a verdict, followed by judgment, for the plaintiff. This judgment the bank seeks to reverse. The former report of the case contains a sufficient statement of the facts, except, perhaps, as to some minor features, which will be mentioned in the course of the opinion.

The report contains what purports to be a bill of exceptions; but this was, on motion of Thomas, quashed at the last term of court. The bank contends that notwithstanding this order, on the authority of Scott v. Waldeck, 11 Neb. 525, 10 N. W. 409, and City of Seward v. Klenk, 27 Neb. 615, 43 N. W. 407, and 30 Neb. 775, 47 N. W. 85, we may still look into this bill of exceptions for the purpose of ascertaining whether the verdict is supported by the evidence. Such a practice is, however, contrary to reason, and has for a long time been rejected by this court. The case of Jones v. Wolfe, 42 Neb. 272, 60 N. W. 563, distinctly disapproves of the rule stated in the cases cited, and must be taken as definitely establishing the doctrine that, when a bill of exceptions has been quashed, it can be no further considered for any purpose.

There being now no bill of exceptions, none of the assignments of error are open for consideration which for examination require the existence of such a bill. The petition in error contains no assignments other than these, except those relating to the instructions. Of these, it is obvious that we cannot consider those relating to the refusal of instructions, because, no matter how obviously correct such instructions may be as abstract statements of law, their refusal was proper, unless they were applicable to the evidence adduced; and whether or not they are so applicable we cannot determine without a bill of exceptions. Furthermore, in examining the instructions given, in the absence of a bill of exceptions, we must presume that they were applicable to the evidence, and could only reverse the judgment for error in giving instructions if such instructions cannot under any circumstances, under the pleadings, be otherwise than prejudicially erroneous. We therefore confine our examination of the case to the limits stated.

The charge of the district court was very long. The instructions were evidently prepared and requested by counsel. It followed that several instructions stating, in substance, the same proposition of law, but in varying language, having been submitted, the court, in several instances, gave the whole group of such instructions, so that the charge is open to the criticism of unnecessarily reiterating the same general proposition, and it is attacked for that reason. It has, however, been established that the repetition of a proposition of law in several instructions is not reversible error, unless it be made to appear that the fact of such repetition was prejudicial to the defeated party. Hill v. State, 42 Neb. 503, 60 N. W. 916;Carleton v. State, 43 Neb. 373, 61 N. W. 699;Gran v. Houston, 45 Neb. 813, 64 N. W. 245. We think this case falls within the rule stated. It will be unnecessary to quote at length each of the instructions which the bank attacks. Attack is not made upon the form of language employed, but upon the proposition of law submitted; and we shall for the most part consider those propositions without reference to the specific instruction or instructions in which they were embodied.

One of the defenses was that the notes sued on were secured by mortgage, and that another action was pending to foreclose the mortgage. By one of the instructions, the jury was told that both remedies might be pursued at the same time. This as a general abstract statement of law would be incorrect. Meehan v. Bank, 44 Neb. 213, 62 N. W. 490. But we cannot learn without a bill of exceptions whether the proof showed a state of affairs within the rule announced in the case cited, or even whether there was any proof in support of the plea. Error, therefore, much less prejudicial error, does not appear.

In several of the instructions, the jury was told that if certain other facts, not necessary to here mention, should be found, then the plaintiff might recover, although Bostwick, the president of the bank, had converted the proceeds of the sale of the notes to his own use, and had thereby defrauded the bank. These instructions are attacked on the ground that the bank had pleaded no such matter in defense, and that the instructions were therefore not within the issues. But many things may develop on the trial not directly pertinent to the issues, and which a jury might consider pertinent in the absence of an instruction that they should be disregarded. In such cases it is proper for the trial court to direct the jury to disregard such matters. For all that appears from the record, these instructions were of this character.

The fourth instruction was to the effect that if on or about May 10, 1889, the bank purchased from Paul the notes in action, and placed to Paul's...