O'Connor v. Padget

• Decision Date: 26 June 1908
• Docket Number: 15,314
• Citation: 116 N.W. 1131,82 Neb. 95
• Parties: CORNELIUS J. O'CONNOR, APPELLANT, v. A. W. PADGET ET AL., APPELLEES
• Court: Nebraska Supreme Court

116 N.W. 1131

82 Neb. 95

CORNELIUS J. O'CONNOR, APPELLANT, v. A. W. PADGET ET AL., APPELLEES

No. 15,314

Supreme Court of Nebraska

June 26, 1908

APPEAL from the district court for Cuming county:

GUY T GRAVES, JUDGE. Affirmed.

AFFIRMED.

R. E Evans and M. McLaughlin, for appellant.

McNish & Graham and Anderson & Keefe, contra.

EPPERSON C. DUFFIE and GOOD, CC., concur.

OPINION

EPPERSON, C. J.

Plaintiff, claiming to be the bona fide owner of two promissory notes, instituted this action to recover thereon. The notes were given as a part of the consideration for a stock of liquors, saloon fixtures, and an unexpired liquor license. A part of the consideration was paid in cash and the notes were given for the remainder. Defendant Padget purchased the liquor business from E. E. Sullivan, but the notes were made payable to his brother, John C. Sullivan, who later indorsed and delivered them to the plaintiff. Defendants recovered below.

The evidence is undisputed that a part of the consideration for which the notes were given was the liquor license which had been issued to E. E. Sullivan. This was held by this court to be an illegal consideration which tainted the whole transaction. Padget v. O'Connor, 71 Neb. 314, 98 N.W. 870. It appears that plaintiff herein gave to the Sullivans $ 160 in cash, and, in addition thereto, canceled an indebtedness owing by the Sullivans to him upon a sublease of certain allotted Indian lands in the Winnebago reservation. In his direct examination plaintiff testified to these facts. For the purpose of showing that a part of the consideration paid by plaintiff for the notes was illegal, defendants questioned the plaintiff's right to sublease the lands to the Sullivans. On cross-examination of the plaintiff, a stipulation of fact was interposed in which the parties agreed that the sublease made to the Sullivans was not approved. Plaintiff acknowledged the fact, but objected to its admission in evidence as immaterial and irrelevant. It is unnecessary to discuss the objection. The error was cured by an instruction of the court, as follows: "Such a consideration would be valid and sufficient to convey title of said notes to said O'Connor as fully as though the full face of said notes had been paid in cash by said O'Connor." The notes were prepared for signature by Mr. Keefe, an attorney at law, who was permitted to testify as to the consideration. Objection was made, claiming that the communications made to him, of which he testified, were privileged. It does not appear, however, that the relation existing between the witness and the payee was that of attorney and client. The witness was simply employed to write out the notes. There was also other undisputed evidence that the assignment of the liquor license was a part of the consideration.

Keefe also testified to a conversation over the telephone with the plaintiff subsequent to the time which the plaintiff now claims to have purchased the notes, in which conversation plaintiff stated that he knew a part of the consideration was for the unexpired license. Plaintiff denied...