Dorsey v. Wellman

• Decision Date: 22 October 1909
• Docket Number: 15,773
• Citation: 122 N.W. 989,85 Neb. 262
• Parties: JAMES W. DORSEY, APPELLEE, v. CHARLES A. WELLMAN ET AL., APPELLANTS
• Court: Nebraska Supreme Court

122 N.W. 989

85 Neb. 262

JAMES W. DORSEY, APPELLEE, v. CHARLES A. WELLMAN ET AL., APPELLANTS

No. 15,773

Supreme Court of Nebraska

October 22, 1909

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.

AFFIRMED.

John C Stevens and John W. Parish, for appellants.

Charles T. Dickinson, contra.

OPINION

ROOT J.

This action was brought upon a negotiable promissory note payable to bearer, by a second indorsee thereof. The answer is somewhat prolix, but, in substance, charges that the instrument was secured by one Sullivan, who falsely represented himself to defendant to be a physician duly licensed to practice medicine in Nebraska, and that he was the manager of a corporation engaged through its employees in the practice of medicine in this state. Defendant further stated that his wife was afflicted with disease, and that, relying on Sullivan's statements and believing them to be true, he executed the note in consideration of medical treatment to be given her, and the further representation that she should be cured or that the note need not be paid. Defendant also testified that medicine was sent and administered to his wife, but that it was valueless and did not cure or relieve her. There are other allegations in the answer not essential for an understanding of this case. Plaintiff replied by way of a general denial. Upon the trial plaintiff introduced the note, and rested. Defendant thereupon asked for a peremptory instruction in his favor, which request was denied. Defendant then testified and introduced other evidence sufficient to establish the truth of the allegations in his answer relative to Sullivan's statements and the falsity thereof. Plaintiff's deposition and the indorsements on the note were also received in evidence. Each litigant at the close of the evidence requested the court to instruct the jury to find in his favor. Plaintiff's motion was granted, and defendant's overruled. Defendant appeals.

1. Defendant argues that a jury, and not the court, should have passed upon the issues joined, and that by the action of the court he was deprived of his constitutional right to a jury trial. The difficulty is that by asking for a peremptory instruction at the time plaintiff made his request at the close of the evidence defendant waived his right to a verdict by the jury. Segear v. Westcott, 83 Neb. 515, 120 N.W. 170.

2. Defendant urges that the evidence does not establish that plaintiff is a bona fide purchaser for value of the note in suit. By requesting a peremptory instruction each litigant admitted the truth of all of his opponent's relevant evidence and all just inferences that might be drawn therefrom. Plaintiff testified that he purchased the note in November, 1902. It matured in December of that year. Plaintiff also testified that he had no knowledge of...