Downing v. Glenn
| Decision Date | 10 April 1889 |
| Citation | 41 N.W. 1119,26 Neb. 323 |
| Parties | L. R. DOWNING, PLAINTIFF IN ERROR, v. S. R. GLENN AND J. H. GLENN, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Kearney county. Tried below before GASLIN, J.
AFFIRMED.
Joel Hull, and Calkins & Pratt, for plaintiff in error.
J. L McPheeley, and J. M. Stewart, for defendants in error.
This was an action to recover an amount alleged to be due on a promissory note. The note was payable to Fuller & Johnson, or order, and had not been transferred to plaintiff except by indorsement made by himself, and there was no direct allegation in the petition that it was the property of plaintiff. For this reason it is insisted that the petition did not state facts sufficient to constitute a cause of action.
The allegations of the petition were in substance that defendants were indebted to plaintiff upon the note which was attached to the petition, and that there was due plaintiff from defendants $ 66.60, with interest, etc., for which judgment was demanded.
While the petition was quite informal, yet it must be held sufficient after judgment. It might no doubt have been assailed by motion under the provisions of section 125 of the Civil Code, and an order would doubtless have been made requiring plaintiff to make it more definite and certain; but in default of such objection, and in view of section 121 Id., which requires the petition to receive a liberal construction, and as no attack was made upon it, and the answer of defendants in direct terms alleged that the note was not the property of plaintiff, but was the property of Fuller & Johnson, thus forming an issue upon which the case was tried, we do not think that defendant can now be heard to insist upon the alleged defect in the pleading.
The note was given for twine, to be used in connection with a harvester in binding grain, and for freight paid upon a harvester purchased by defendants from Fuller & Johnson, through plaintiff, as their agent. It was shown that the harvester failed to comply with the warranty given by Fuller & Johnson at the time of its purchase, and that it was returned to them, whereupon they agreed to surrender to defendants the three notes for $ 105 each, given for the purchase price; but that instead of returning the notes as agreed, they sold and transferred one before its maturity and that defendants had it to pay. These facts...
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