Gandy v. Estate of Bissell
| Decision Date | 22 September 1904 |
| Docket Number | 13,359 |
| Citation | 100 N.W. 803,72 Neb. 356 |
| Parties | MARY E. GANDY v. ESTATE OF WILLIAM C. BISSELL ET AL |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county: JOHN S. STULL JUDGE. Reversed.
REVERSED.
S. P Davidson and Reavis & Reavis, for plaintiff in error.
C Gillespie and Francis Martin, contra.
The nature of this case is sufficiently stated in the former opinions of this court. In Gandy v. Estate of Bissell, 3 Neb. Unoff. 47, 90 N.W. 883, a judgment of the district court for 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. Unoff. 184, 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 Mrs. 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 allowed for the purpose of proving such payment or settlement.
The third instruction asked by the plaintiff was an attempt to supply this necessary information to the jury, but was properly refused by the court because it contained the statement that if "the signature to the note in controversy is the genuine signature of William C. Bissell they will find for the plaintiff." This was not the law of the case, because under the issues formed, the signature might be genuine; in fact, it would seem from the evidence that the name signed to the note was the genuine signature of...
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