Cox v. Ellsworth

• Decision Date: 18 December 1914
• Docket Number: No. 17890.,17890.
• Citation: 97 Neb. 392,150 N.W. 197
• Parties: COX v. ELLSWORTH ET AL.
• Court: Nebraska Supreme Court

97 Neb. 392

150 N.W. 197

COX

v.ELLSWORTH ET AL.

No. 17890.

Supreme Court of Nebraska.

Dec. 18, 1914.

Syllabus by the Court.

In an action by an alleged assignee of two promissory notes in which it is averred that defendant signed as principal and plaintiff as surety, and each had paid one-half of the debt, the suit being for the recovery of the one-half paid by plaintiff, and defendant answered that they each had signed as surety under an oral agreement that if the notes were not otherwise paid each was to pay one-half, and each had so paid, oral proof of such agreement was properlyadmitted for the purpose of ascertaining the rights of the parties as between themselves.

Where two persons were sued as defendants, and the verdict was in favor of plaintiff and against one of the defendants and silent as to the other, and is received by the court, without objections or question by the parties, and there is sufficient proof to justify a verdict in favor of such defendant, the judgment rendered on such verdict will not be reversed on that ground; the presumption being that the jury found in favor of the defendant not referred to in the verdict.

Instructions examined, and no prejudicial error found in them.

Appeal from District Court, Adams County; Dungan, Judge.

Action by Eli H. Cox against C. C. Ellsworth and others. From judgment for defendants, plaintiff appeals. Affirmed.

John C. Stevens, of Hastings, for appellant.

Tibbets, Morey & Fuller and J. E. Willits, all of Hastings, for appellees.

REESE, C. J.

This is an appeal from the district court for Adams county. Plaintiff, Eli H. Cox, brought suit against the defendants, C. C. Ellsworth and S. J. Boemer, and alleged in his petition that on the 28th day of June, 1907, the defendants made their two promissory notes to the Clark Implement Company in the sum of $708.50; that about the 1st day of December, 1907, the notes matured; that plaintiff signed said notes as surety at the request of defendants; that at their maturity the defendant Boemer paid one half thereof, and agreed with plaintiff “to pay the other half as soon as he could”; that the notes were the joint notes of the defendants; that upon the maturity thereof plaintiff was compelled to pay the sum of $365, and took an assignment of said notes from the Clark Implement Company; that no part of said indebtedness had been paid; that said notes drew 6 per cent. interest from the dates thereof; and that there was due from defendants to plaintiff the sum of $365, and interest $93.99. Judgment was demanded for the sum of $458.99, with interest at the rate of 6 per cent. from the date of the petition, and for costs of suit.

Defendant Ellsworth answered by a general denial, and alleged that he was only a nominal party to the transaction; that the notes were given for a threshing outfit, with the express understanding that, if he failed to operate said threshing outfit, then and in that event, upon his return and surrender of the outfit, the transaction would be settled, and he would be relieved from all liability on said notes; that he had long since performed all on his part to be performed; that the consideration for said notes was satisfied and returned, and plaintiff had no cause of action against him; that he returned and duly surrendered said threshing outfit, and thereby satisfied and discharged his obligation on said notes, which are now and have been for the past several years paid and satisfied so far as he is concerned.

Defendant Boemer answered: (1) By a special appearance objecting to the jurisdiction of the court over him, on the ground that he was not properly joined as a defendant, there being no joint liability between him and defendant Ellsworth to plaintiff on the averments of plaintiff's petition, he being a nonresident of Adams county, and the only service of summons being had upon him was in Nuckolls county, the place of his residence; (2) that without confessing the jurisdiction of the court over him, he alleged that on June 21, 1907, he, as the local agent of the Clark Implement Company at Lawrence, Nuckolls county, took an order from C. C. Ellsworth for one complete Russell & Co. threshing rig, including engine, separator, and equipment, for the agreed price of $2,643; that said Clark Implement Company refused to deliver the property to Ellsworth without additional security on the two notes on which this suit is brought, being the first notes to mature, and it was agreed between plaintiff, who represented said company, and this defendant, that they each would sign said notes with said Ellsworth as...