Farmers National Bank v. Ohman
| Decision Date | 18 July 1924 |
| Docket Number | 22873 |
| Citation | 199 N.W. 802,112 Neb. 491 |
| Parties | FARMERS NATIONAL BANK, APPELLEE, v. L. D. OHMAN ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Stanton county: ANSON A. WELCH JUDGE. Affirmed.
AFFIRMED.
George A. Eberly, for appellants.
D. C Chase and Hugo M. Nicholson, contra.
Heard before MORRISSEY, C. J., DAY, GOOD and THOMPSON, JJ., and REDICK, District Judge.
The plaintiff alleges, in substance, as a basis of recovery, that it is a corporation, organized and doing business at Pilger, Nebraska, as a national bank; that on the 26th day of April, 1921, the defendants executed and delivered to it their promissory note, in the usual commercial form, for the sum of $ 7,500, drawing interest at 10 per cent. per annum, due six months after date; that the same was long past due and that no part thereof had been paid, and prayed judgment accordingly.
The defendant L. D. Ohman answered, in substance, alleging, first, a general denial; second, that the note was signed by the defendant without consideration and solely for the accommodation of the payee named therein.
The defendant M. D. Ohman for answer alleged, in substance, first, that the note was signed by the defendant solely for the accommodation and benefit of the payee and wholly without consideration received by the defendant, or parted with by plaintiff; second, that in signing the note she did so pursuant to, and relying upon, an oral agreement made and entered into by and between the plaintiff and herself, and in her behalf; that the agreement constituted the condition upon which the note was signed and delivered; that it was agreed that the note was for the purpose of aiding and assisting plaintiff, and solely to enable plaintiff to satisfy the demands of the bank examiner and the national banking authorities, then being made upon said plaintiff; that she thus signed the note with the defendant L. D. Ohman wholly and solely upon the condition that it was to be accommodation paper for the purpose named in the oral agreement; that the plaintiff, in consideration, agreed with her that the aforesaid note was to be used solely for the purpose of satisfying the bank examiner and national banking authorities; that the defendant would not be required to pay the note and that there should be no recourse to her by the plaintiff. The third paragraph is but a repetition of the first and second.
It will be noticed that this answer of M. D. Ohman, by not denying, admits every allegation in the petition well pleaded, and seeks to avoid the effect or consequences by a plea that the same is accommodation paper, signed by her without consideration and for the sole benefit of the plaintiff.
The plaintiff for reply to each of the answers filed a general denial.
The case came on for trial and at the close of defendants' evidence plaintiff moved for an instructed verdict in its favor in the sum of $ 8,233.36, the amount of the note and interest to that date. Motion sustained, and the court instructed the jury as follows: "You are instructed by the court to return a verdict for the plaintiff in this case against both defendants in the sum of $ 8,233.36." Defendants jointly except, and jury return a verdict for the amount. Judgment by the court entered thereon. Defendants separately file motion for a new trial, alleging as grounds therefor: "That the court erred in instructing the jury to render verdict in favor of plaintiff: that the verdict is not sustained by the evidence and is against the weight thereof; that the verdict is contrary to law." Motion overruled. Case appealed by the defendants, M. D. Ohman giving her separate supersedeas bond.
The instruction quoted in defendants' brief is not found in the transcript, but is taken from statements made by the court, as shown by the bill of exceptions, leading up to the giving of the instruction heretofore quoted.
From the pleadings it will plainly be seen that the main issue raised thereby, so far as M. D. Ohman was concerned, was as to whether or not the note sued on was as to her an accommodation note given for the primary benefit of the payee, and without consideration directly or indirectly running to her from the payee; the other facts pleaded in her answer, as to the desire on the part of the bank to satisfy the bank examiner and national banking authorities, being simply an amplification of the plea necessary in a case of accommodation paper. The pleading is without an allegation of intentional fraud, deceit, or charge of wrong-doing as to any of the parties. In considering the effect of a directed verdict, we are not unmindful of the rule announced by us in O'Hara v. Hines, 108 Neb. 74, 187 N.W. 643.
Defendant M. D. Ohman is the mother of defendant L. D. Ohman, and we shall refer to them as mother and son, respectively.
The evidence, in substance, further shows that at the time of the execution and delivery of the note in question the plaintiff bank still held a past-due note for $ 5,000 signed by the son and his mother; also an enforceable note signed by the son alone in the like sum of $ 7,500; that the national bank examiners had objected to the plaintiff bank longer carrying the latter note with only the signature of the son, and requested plaintiff bank to demand additional security, which it did of him at his home in Stanton county, telling him at the time that the bank examiner had been at the bank, examined the notes, and demanded that his $ 7,500 note be paid, or an additional signer thereon obtained; that he said he did not like to ask his mother to sign the note with him, as debts worried her; that Chace, president of the bank, said: "We will give you plenty of time, and you can renew the note from time to time so that this will give you a chance to pay it, and your mother need not be troubled;" that at the same time the note in question was prepared, signed by the son and left with him, he sent the note to her, and, as shown by his evidence, stated to her in a letter submitting the same: "I wrote to her that the examiner was demanding another signature on the paper, and that I had the promise of Mr. Chace and Mr. Larson that if mother would sign the note with me she would not be troubled for payment, that they would give me three or four years to work it out myself."
After receiving the letter and the note, the mother signed the latter, returned it to the son, and he delivered it to the bank, at which time he was told that the bank examiner had been there and that the bank had informed him that they were expecting the mother to sign the note with him, and the examiner said he would then let the matter rest until the new note was executed and returned to the bank, or words to that effect. That afterwards, and just before the note was due, the bank officials went to the son's farm and requested that he secure the $ 5,000 note, and the note in question, interest on each, and $ 600 interest unpaid on the note renewed, amounting in all to the sum of about $ 14,000. That the son declined to secure the said amount on his lands for the reason that he wanted to make some other disposition of them; and that they then went to the mother to have her secure the $ 14,000 and she said she would want some days to consider it; that she afterwards informed the bank that she had concluded not to mortgage her farm, and further said, at any rate she thought they were not going to trouble her.
In this case, the examiners acted as duty demanded, the bank carried the demand to the maker of the note, and requested payment thereof or another name. The mother had previously signed one note with the son for $ 5,000 payable to the bank; and the most natural thought to come to both the bank officers and the son was to have the mother go on the note with the son. And just as natural for the officers to say to the son, it is security we are after, and if you will get your mother to sign the note with you we will give you time to make the payments yourself if you desire, and we will not trouble the mother. The son so understood it and a fair construction placed on the letter to the mother will so interpret the language used.
We first notice defendants' contention that the note in question was given without consideration as an accommodation note. They urge that the plaintiff bank parted with nothing of value when the note in question was received. This contention cannot be sustained. Induced by the receipt of it, plaintiff bank credited the son upon its books with $ 7,500 as payment on the original note, and by extending time of payment thus relinquished its right to sue on this note pro tanto. Also, the original consideration for the note renewed was sufficient. We consider the law to be correctly stated in 8 C. J. 217, sec. 352, as follows:
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