Harnett v. Holdrege

• Decision Date: 18 November 1903
• Parties: HARNETT v. HOLDREGE ET AL.
• Court: Nebraska Supreme Court

97 N.W. 443

HARNETT v. HOLDREGE ET AL.

Supreme Court of Nebraska

November 18, 1903

Commissioners’ Opinion, Department No. 2. Error to District Court, Douglas County; Estelle, Judge.

"Not to be officially reported."

Action by Thomas L. Harnett against George W. Holdrege and others. Judgment for defendants, and plaintiff brings error. Affirmed.

James H. McIntosh, for plaintiff in error.

James E. Kelby, F. I. Foss, J. W. Deweese, and R. D. Brown, for defendants in error.

OPINION

BARNES, C.

The plaintiff, in his representative capacity as trustee of a trust created by the last will and testament of one Hannah S. Allen, deceased, commenced this action in the district court of Douglas county against the South Fork Irrigation & Improvement Company, Fayette I. Foss, W. L. Matson, George W. Holdrege, A. L. Emerson, C. H. Peck, and Joel W. Deweese upon two promissory notes. The following is a copy of one of them:

This note to be exchanged for consolidated mortgage bonds of Nebraska & Northwestern Irrigation Company when issued at 90.

$5,000.00.

St. Francis, Ks., February 10, 94.

Two years after date for value received The South Fork Irrigation & Improvement Company promises to pay the order of itself Five Thousand Dollars at the Mercantile Nat. Bank, Hartford, Conn.

With interest before and after maturity at the rate of 6 per cent. per annum until paid.

The South Fork & Irrigation ImProvement Co.

By G. W. Holdrege, Pt.

By A. L. Emerson, Sec. & Tr.

The back of said note was as follows:

"For value received we hereby guarantee payment of the within note, and waive presentment for payment, demand and notice of protest.

The South Fork Irrigation & Improvement Co.,

By G. W. Holdrege, Pt.

By A. L. Emerson, Sec’y.

For value received we hereby guarantee the payment of the within note, and waive presentment for payment, demand and notice of protest.

F. I. Foss.

W. L. Matson.

G. W. Holdrege.

A. L. Emerson.

C. H. Peck.

J. W. Deweese.

Received $600 interest for two years March 1st, 1896.

Received $300 interest for one year Nov. 26th, 1897.

Received $600 interest for two years February 1st, 1900, to February 10th, ‘99.

Received $300 interest for one year February 10th, ‘99 to Feb. 10, 1900."

The other note was like the one above set out, the only difference being in the date and the amount. The petition contained, in addition to the usual averments, the facts which authorized the plaintiff to maintain the suit in his representative capacity. No service of summons was ever made on any of the defendants except Foss, Holdrege, and Deweese. So the action was prosecuted solely against them. They appeared, and each filed a separate answer to the plaintiff’s petition, which charged them with the liability of indorsers only. The answers of Foss and Holdrege were precisely the same. They set out the condition of the notes constituting the two causes of action when they signed them. They alleged that they did not guaranty the payment of the notes, or waive their presentment for payment, or protest, or notice of the same. They denied that the notes were ever protested, or that they ever received any notice of their protest, as alleged in the plaintiff’s petition, or otherwise. They denied that Hannah S. Allen, deceased, loaned the irrigation company, or either of them, the sum of money mentioned in the notes, and denied that the notes were the same notes or contracts which were indorsed by them. They alleged that the notes indorsed by them were subsequently altered and changed by writings on the back and face without their knowledge or consent, and alleged that the notes sued on are not their contracts, and are not the notes that were indorsed by them in blank, as above stated. The defendant Deweese, by his answer, raised the same issues, but, in addition thereto, he pleaded the statute of limitations. It was further stated in the answers, and all of them, that whatever payments were indorsed upon the back of the notes were made by some one other than themselves; that they were not made by either of them, and were made without their knowledge or consent. The reply at first was a general denial. Later on it was amended, and it was alleged therein that the alterations of the notes, if any there were, either written or printed, were not made by Hannah S. Allen, nor any one for or in privity with her, but by some one who was an entire stranger to her, and that it was not known to her when, where, or by whom the two clauses of the notes alleged by the defendants to constitute changes or alterations thereof were made.

After the introduction of the evidence, and at the close of the trial, the plaintiff moved the court for peremptory instructions directing the jury to find in his favor for the full amount of the notes and against each of the several defendants; while the defendants each filed a motion requesting the court to direct the jury to return a verdict in his favor. The plaintiff’s motions were overruled. The defendants’ motions were sustained, and the jury returned a verdict for each of them. Judgment was entered thereon, and the plaintiff prosecuted error to this court.

The plaintiff contends that the court erred in refusing to direct the jury to return a verdict in his favor and against the defendants Holdrege and Foss, for the reason that their answers do not state facts sufficient to constitute a defense to the causes of action set forth in the petition. Each of these defendants alleges in his answer that he did not guaranty the payment of the notes, or waive their presentment for payment or protest or notice of the same. He denies that the notes were ever protested, or that he ever received any notice of protest, as alleged in the plaintiff’s petition, or otherwise. He denies that Hannah S. Allen loaned the irrigation company $5,000 on the date of the giving of the first note, and makes the same denial as to the second note. He denies that the notes are the same notes or contracts that were indorsed by him, and alleges that the notes which he indorsed were subsequently altered and changed by writings on the back and face without his knowledge or consent; and then states, as to each note: "That the note sued on is not the contract of this defendant, and is not the note that was indorsed by him in blank, as above stated." It appears that no demurrer was ever filed to these answers, or either of them; that the only objection ever made to them was when, at the beginning of the introduction of the defendants’ evidence, plaintiff objected because the answers did not set forth a defense, which objection was overruled. The rule is that, where a plaintiff fails to demur to an answer which he claims to be insufficient or defective, but elects to raise the sufficiency thereof on an objection to the introduction of the evidence, such answer will be liberally construed, and if, under this rule, it may be said to fairly raise a defense, it will be declared sufficient. Such was the holding in First Nat. Bank of Cobbleskill v. Pennington, 57 Neb. 404, 77 N.W. 1084, where the court said: "The answer was probably not as specific and complete a plea or connected set of pleas of usury, sought to be interposed as a defense in the action, as might have been framed, but, liberally construed, as it must be against an attack by demurrer at the stage of proceedings in a case that the one herein was, the answer contained a sufficient plea of the usurious nature of each transaction to which it referred; also all of them considered connectedly or as a whole." See, also, Sorensen v. Sorensen (Neb.) 94 N.W. 540. This rule is so well established that it is unnecessary to cite further cases in support of it. The answers were sufficient to raise a defense to the causes of action set forth in the petition. The instruction asked for, if given, would have amounted to a judgment in favor of the plaintiff upon the pleadings, and was properly refused.

It is next contended that the plaintiff was entitled to an instruction directing the jury to return a verdict in his favor and against the defendant Holdrege, because he did not offer his own testimony in the case. Defendant Foss testified that the individual signature of defendant Holdrege was on the back of the notes when he indorsed them, and at that time there was no indorsement of the waiver thereon. Defendant Deweese testified that at the time he signed his name on the back of the notes the names of F. I. Foss, W. L. Matson, G W. Holdrege, A. L. Emerson, and C. H. Peck were there. He says: "I then signed it as the last indorser. Q. State whether or not at that time the names of G. W. Holdrege, Pt., and A. L. Emerson, Sec., were there. A. My best recollection is that they were not. The ‘By’ seems to be written in a different hand there from Holdrege. Who put it there I don’t know. And the ‘Pt.’ and ‘Sec’y.’ is in a different hand from theirs. The printed part was not there--that stamped printed part. Q. That is, you mean, ‘For value received we hereby guarantee the payment of the within note, and waive presentment for payment, demand and notice of protest?’ A. Well, that was not there at the time I indorsed it. Q. State to the jury whether or not that was put there with your knowledge or consent, or placed there with your knowledge or consent? A. It was not. I knew nothing about its being placed there." Upon this point the testimony of defendant Foss was the same in substance as that above quoted. This evidence was not questioned or disputed by any one. It stands unimpeached, and is entitled to full faith and credit. If this state of facts existed when Foss and Deweese indorsed the notes, it follows that the words, "For value received we hereby guarantee the payment of the within...