Gandy v. Bissell's Estate

• Decision Date: 22 September 1904
• Citation: 100 N.W. 803,72 Neb. 356
• Parties: GANDY v. BISSELL'S ESTATE ET AL.
• Court: Nebraska Supreme Court

72 Neb. 356

100 N.W. 803

GANDY

v.BISSELL'S ESTATE ET AL.

Supreme Court of Nebraska.

Sept. 22, 1904.

Syllabus by the Court.

1. The evidence in this case is found to be sufficient to require the submission of the issue to the jury.

2. A fraudulent alteration of the note sued upon may be shown under the general issue, and when the whole evidence fairly raises the question, testimony tending to show that no

such indebtedness as the one sued upon ever existed is competent upon the issue of alteration.

3. In an action upon a promissory note, the plaintiff's possession and production of the note at the trial is prima facie evidence of delivery and ownership.

4. If the note when executed is by agreement of the parties delivered to a third person, to be by him delivered to the payee upon the performance of a condition precedent, and the condition is performed after the death of the maker of the note, the delivery becomes complete by the performance of the condition.

5. When, in an action upon a promissory note, there is evidence tending to show that the note sued upon is not the genuine note of the defendant, it is competent to show the circumstances surrounding the parties at the time of the alleged execution of the note.

On rehearing. For former opinion, see 97 N. W. 632. Reversed.

SEDGWICK, J.

The nature of this case is sufficiently stated in the former opinions of this court. In Gandy v. Bissell's Estate, 3 Neb. (Unof.) 47, 90 N. W. 883, a judgment of the district court of Richardson county in favor of the defendant estate was reversed for errors there pointed out. After another trial in the district court, the case was again brought here, and a second judgment of the district court in favor of the defendant estate was affirmed. 5 Neb. (Unof.) ___, 97 N. W. 632. Upon rehearing and further argument, we are convinced that the last judgment of the district court is also erroneous, and a new trial must be had.

1. The plaintiff insists that the court should have given a general instruction in her favor, but we are satisfied that the plaintiff was not entitled to such instruction for the reasons stated in the former opinion herein, and for other reasons that appear in the record. We are satisfied that the question of the sufficiency of the evidence in this case is preeminently one for the jury, and not a question for the court, and as there must be another trial, it is apparently unadvisable to state further reasons for this conclusion.

2. No doubt the evidence of the witness Hawley was competent. There was sufficient evidence before the jury to justify the conclusion that Mr. J. L. Gandy was either the real party in interest, or had such control of the business of Mrs. Gandy that his admissions in regard to this note would be competent. His wife, Mary E. Gandy, took no part in transacting any of the business with Mr. Bissell. If she had any interest in the business whatever, she was content to leave the entire management thereof with her husband. There was evidence that Mr. Bissell had been told that the Gandys--that is, J. L. Gandy and his wife--claimed to hold a large demand against him. He therefore sought a settlement, and it was in pursuance of this desire of Mr. Bissell's that the Hawley settlement was made. Mr. Gandy knew this, and, although he was acting for his wife in all things as well as for himself, he completed a settlement with Mr. Bissell without mentioning the existence of this extraordinary claim. Not only so, but if Mr. Hawley's testimony is to be believed, Mr. Gandy assured him that all claims of both himself and wife were settled, and that his interest and authority were such that it was unnecessary to have Mr. Gandy's signature to the receipt, which was given as evidence of complete settlement. Such evidence tends to show that at that time, at least, no such claim existed as the one now sued upon, and was competent for that purpose. There was no plea of payment or settlement of this particular claim, and such defense, of course, could not be available to the estate. This distinction should have been made clear to the jury in the court's instructions. It was competent to prove under the issues joined that no such claim as that sued for ever existed, and because the proof offered tended in that direction it was competent. The jury should have been informed of the fact that there was no allegation of payment or settlement of the claim, and that the evidence in question was not...