Farmers' & Merchants' Bank of Ulysses v. Tate, No. 17,616.

CourtSupreme Court of Nebraska
Writing for the CourtFAWCETT
Citation147 N.W. 213,96 Neb. 142
Docket NumberNo. 17,616.
Decision Date04 May 1914
PartiesFARMERS' & MERCHANTS' BANK OF ULYSSES v. TATE ET AL.

96 Neb. 142
147 N.W. 213

FARMERS' & MERCHANTS' BANK OF ULYSSES
v.
TATE ET AL.

No. 17,616.

Supreme Court of Nebraska.

May 4, 1914.



Syllabus by the Court.

Where, in an action by the indorsee of a promissory note against the maker thereof alone, the maker answers, and alleges that the transfer of the note by the payee thereof to such indorsee was without consideration and a mere device on the part of the payee and his indorsee to enable the latter to fraudulently collect the note for the benefit of the payee, it is not error for the court, upon the application of the maker, to order that the payee be impleaded in such action; and, where the payee is so impleaded, he is properly brought within the jurisdiction of the court by a summons issued to the sheriff of any county in the state where he resides and duly served upon him in such county.

Where, in the purchase of real estate, the vendee pays a portion of the consideration in cash, and enters into a written contract with the vendor for the payment of the balance of the purchase price at a stipulated time, and at the same time, and as a part of the transaction, signs and delivers to the vendor a promissory note, the payment by the vendee, or by his agent for him, of the entire contract price of the land purchased, less the cash payment made at the time of the purchase, operates as a payment and full satisfaction of the debt evidenced by the note so given.

And in such a case, if the payee of the note transfers the same to an innocent purchaser prior to the maturity of the contract, and subsequently collects the full amount of the contract price of the land from the maker's agent, during the absence of the maker, without disclosing to such agent the existence of the note, it is his duty to pay the note so held by his indorsee; and, in the event of his failure so to do, a judgment in favor of the indorsee in an action against the maker, wherein the payee is impleaded, fixing the liability of the payee as that of a principal, and the liability of the maker as that of a surety, is proper.


Appeal from District Court, Dodge County; Hollenbeck, Judge.

Action by the Farmers' & Merchants' Bank of Ulysses against R. J. Tate and G. L. Smith. From the judgment, defendant Smith appeals. Affirmed.

[147 N.W. 213]

L. S. Hastings, of David City, Frank Dolezal, of Fremont, and E. A. Coufal, of David City, for appellant.

C. M. Skiles, of David City, for appellee Farmers' & Merchants' Bank of Ulysses.


Sullivan & Rait, of Omaha, and M. V. Beghtol, of Lincoln, for appellee Tate.

FAWCETT, J.

August 9, 1909, defendant Tate bought from G. L. Smith 640 acres of land in Cheyenne county, for the agreed price of $15 per acre, which would be $9,600. Tate prepared a contract for execution, which recited the consideration named, and provided that he should pay $1,000 in cash and the balance of $8,600 March 1, 1910. He signed the contract so written and passed it over to Smith for signature. Smith thought that $1,000 was hardly a sufficient cash payment upon so large a transaction. Tate then proposed to give him his note for $2,000, payable on the same date that the contract would mature, stating that, if he (Tate) then failed to make good his contract by paying the balance of the agreed consideration, Smith would have $1,000 in cash and Tate's promissory note for $2,000. This was satisfactory to Smith, and he thereupon executed the contract. The contract was executed in duplicate, and each of the parties took a copy thereof. Subsequently, and before the maturity of the note and contract, Smith assigned the note to the plaintiff bank, of which he was president and a director. Four days before the maturity of the note and contract, Smith visited Fremont, the home of Tate, and, Tate being absent...

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4 practice notes
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • May 29, 1931
    ...State Bank v. Ingrum, 107 Neb. 468, 186 N. W. 334;Barry v. Wachosky, 57 Neb. 534, 77 N. W. 1080;Farmers' & Merchants' Bank v. Tate, 96 Neb. 142, 147 N. W. 213;Wiley v. National Surety Co., 103 Neb. 68, 170 N. W. 349. In Ayres v. West, 86 Neb. 297, 125 N. W. 583, 584, this court said: “The l......
  • H. F. Cady Lumber Co. v. Miles, No. 17,761.
    • United States
    • Supreme Court of Nebraska
    • May 4, 1914
    ...in question, was material for the construction of the house, and the fact that it was used temporarily in the shack to shelter the Miles [147 N.W. 213]family at the time when they commenced building the house did not make it a delivery for the construction of any other building. The deliver......
  • Lincoln Sec. Co. v. Poppe, Inc., No. 25717.
    • United States
    • Supreme Court of Minnesota (US)
    • December 24, 1926
    ...of the trial court, and we cannot say that its discretion was not properly exercised. Farmers' & Merchants' Bank of Ulysses v. Tate, 96 Neb. 142, 147 N. W. 213, cited by counsel for defendant, is not in point, for the reason that the defense was based on a fraud perpetrated by the payee of ......
  • Lincoln Securities Co. v. Poppe, Inc., No. 25717.
    • United States
    • Supreme Court of Minnesota (US)
    • December 24, 1926
    ...of the trial court, and we cannot say that its discretion was not properly exercised. Farmers' & Merchants' Bank of Ulysses v. Tate, 96 Neb. 142, 147 N. W. 213, cited by counsel for defendant, is not in point, for the reason that the defense was based on a fraud perpetrated by the payee of ......
4 cases
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • May 29, 1931
    ...State Bank v. Ingrum, 107 Neb. 468, 186 N. W. 334;Barry v. Wachosky, 57 Neb. 534, 77 N. W. 1080;Farmers' & Merchants' Bank v. Tate, 96 Neb. 142, 147 N. W. 213;Wiley v. National Surety Co., 103 Neb. 68, 170 N. W. 349. In Ayres v. West, 86 Neb. 297, 125 N. W. 583, 584, this court said: “The l......
  • H. F. Cady Lumber Co. v. Miles, No. 17,761.
    • United States
    • Supreme Court of Nebraska
    • May 4, 1914
    ...in question, was material for the construction of the house, and the fact that it was used temporarily in the shack to shelter the Miles [147 N.W. 213]family at the time when they commenced building the house did not make it a delivery for the construction of any other building. The deliver......
  • Lincoln Sec. Co. v. Poppe, Inc., No. 25717.
    • United States
    • Supreme Court of Minnesota (US)
    • December 24, 1926
    ...of the trial court, and we cannot say that its discretion was not properly exercised. Farmers' & Merchants' Bank of Ulysses v. Tate, 96 Neb. 142, 147 N. W. 213, cited by counsel for defendant, is not in point, for the reason that the defense was based on a fraud perpetrated by the payee of ......
  • Lincoln Securities Co. v. Poppe, Inc., No. 25717.
    • United States
    • Supreme Court of Minnesota (US)
    • December 24, 1926
    ...of the trial court, and we cannot say that its discretion was not properly exercised. Farmers' & Merchants' Bank of Ulysses v. Tate, 96 Neb. 142, 147 N. W. 213, cited by counsel for defendant, is not in point, for the reason that the defense was based on a fraud perpetrated by the payee of ......

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