Hart v. Mead Inv. Co.

• Decision Date: 21 December 1897
• Citation: 73 N.W. 458,53 Neb. 153
• Parties: HART ET AL. v. MEAD INV. CO.
• Court: Nebraska Supreme Court

53 Neb. 153

73 N.W. 458

HART ET AL.

v.MEAD INV. CO.

Supreme Court of Nebraska.

Dec. 21, 1897.

Syllabus by the Court.

1. In a suit on a bond, an answer pleading that a defendant signed on condition that others named should also sign before the bond should be delivered, and that such others did not sign, is insufficient unless it further alleges that plaintiff had notice of the condition.

2. One of several defendants sued on a bond, obtaining a favorable verdict, on the ground that her signature had been secured by fraud, the other defendants, against whom verdict is at the same time rendered, cannot be heard to complain of the judgment because the release of the successful defendant also released them; they not having pleaded the invalidity of her obligation as a defense for themselves.

Error to district court, Douglas county; Blair, Judge.

Action by the Mead Investment Company against Clement L. Hart and others. Judgment for plaintiff, and certain defendants bring error. Affirmed.D. L. Cartan, E. C. Page, Estabrook & Davis, and J. E. Nevin, for plaintiffs in error.

Wm. A. Redick, for defendant in error.

IRVINE, C.

In the district court the defendant in error recovered judgment against the plaintiffs in error on a bond signed by the plaintiffs in error and one Carrie Parker, and conditioned for the payment of any deficiency judgment which should be rendered the investment company against a corporation known as the Northside Building Association, in a foreclosure suit pending at the time the bond was made. Broadly stated, the defense relied on by the plaintiffs in error was that they had each signed the bond on condition that others should sign, and that the condition was not complied with. The district court peremptorily directed a verdict against Hart, Sherman, Nevin, and Parrott. As to defendant Riley, the case was submitted to the jury on certain issues, including that presented by the defense alluded to. The defendant Carrie Parker had apparently, although her answer does not appear in the record before us, interposed a separate defense that her signature had been procured by fraud, and that issue was also submitted to the jury, and by it determined in her favor.

While there are in the petition in error numerous special assignments, the case is argued only on the broad ground that the court erred in directing a verdict in favor of the plaintiff against the four defendants above named, and erred in permitting a verdict to be returned against Riley. From the pleadings, as well as from the evidence, it appears that the defendants were, or were alleged to be, stockholders or members of the Northside Building Association, which had given to the plaintiff a mortgage on a number of lots in Omaha, to secure the payment of a debt on which there remained due about $15,000. Suit was pending to foreclose this mortgage, and an arrangement was made whereby the greater part of the debt was secured on other property or paid, and all the mortgaged property released except two lots. As to these lots, the foreclosure was to proceed to decree and sale without the interposition of any defense, or exercise of the right of stay; and the building association agreed, in the terms of the contract, to “procure the execution and delivery to second party, by Charles R. Sherman and C. L. Hart and others, of a bond in the sum of $1,500, conditioned for the payment of any deficiency arising upon said sale, within ninety days from the entry...