Frederick v. Kinzer

• Decision Date: 17 March 1885
• Parties: FREDERICK v. KINZER.
• Court: Nebraska Supreme Court

17 Neb. 366

22 N.W. 770

FREDERICK

v.KINZER.

Supreme Court of Nebraska.

Filed March 17, 1885.

Error from Richardson county.

E. W. Thomas, for plaintiff.

John Saxon and Isham Reavis, for defendants.

COBB, C. J.

On the trial in the court below, the court of its own motion instructed the jury as follows: “In order to find that Peter Frederick is one of the makers of the note, you must find either that he signed his name thereto, or, since his name was signed thereto, ratified the act as his own.” The defendant prayed the court to give the following instruction: “The jury are instructed that Kinzer cannot recover in this action unless it has been proved by the preponderance of the evidence, either that Peter Frederick did sign the note, or that it was signed by some person in his presence, and by his direction, or with his consent.” To which the court added the following: “Or that, since his name was signed to the said note, he has ratified and adopted the act of so signing his name as his own.” And, with said words added thereto, gave the said instruction in charge to the jury, and not otherwise. To the giving of the said first instruction, and to the adding of said words to said second instruction, and refusing to give it without the said words attached thereto, the said defendant excepted, and assigns the same as error.

The pleadings consist of a petition in the usual form on a note alleged to have been signed by one George Weissenstein and by the defendant as “P. Frederick;” an answer by the defendant, Frederick, denying the execution of said note,--that he ever authorized any person to sign or execute the same for him, or in his name; and denying any indebtedness from him to the plaintiff. There was no reply. There is a sharp conflict in the testimony as to whether the note was signed by the said Frederick as a security, or his name written on the same by his daughter, a girl some 12 or 13 years of age, in his absence and without his knowledge, at the request of the said George Weissenstein, the principal in the note. But there was no testimony tending to prove a ratification or adoption of the note by Frederick. There was some testimony of a very unsatisfactory character, however, of admissions on the part of Frederick that he had become security for Weissenstein for the price of a cow, for which the said note was alleged to have been given, but no mention of a note was alleged to have been made in such admissions. None of these...