Helmer v. Commercial Bank of B. M. Webster

• Decision Date: 07 January 1890
• Citation: 44 N.W. 482,28 Neb. 474
• Parties: HELMER v. COMMERCIAL BANK OF B. M. WEBSTER.
• Court: Nebraska Supreme Court

28 Neb. 474

44 N.W. 482

HELMER

v.COMMERCIAL BANK OF B. M. WEBSTER.

Supreme Court of Nebraska.

Jan. 7, 1890.

Syllabus by the Court.

1. A negotiable promissory note was transferred by the payee by writing on the back of the note, as follows: “For value received, I hereby guaranty payment of the within note, and waive demand and notice of protest on the same when due. A. H. WARREN.” Held to be an indorsement. Heard v. Bank, 8 Neb. 10; Bank v. Haylen, 14 Neb. 480, 16 N. W. Rep. 754.

2. Where a negotiable promissory note is transferred, before due, as collateral security for a loan then made, and received by the indorsee without notice of any defense existing against it in the hands of the indorser, he is entitled to be treated as a bona fide holder, and protected at least to the extent of the loan.

Error from district court, Gage county; BROADY, Judge.Winter & Kauffman, for plaintiff in error.

A. D. McCandless, for defendant in error.

MAXWELL, J.

This action was brought on a promissory note of which the following is a copy: “$210.00. Marysville, Kansas, May 13, 1887. Eight months after date, I, we, or either of us promise to pay to the order of A. H. Warren $210.00, at the First Nat'l Bank of Marysville, Kansas, with interest at 12% per annum from date until paid, for value received. CHRIST HELMER. No. 19,362. Due ______, 188--. P. O. Wymore, Neb. (Bank of Wymore, Coll. No. 2,796, Wymore, Neb.) [[[Indorsed] G. B. JENNINGS. 4,389. For value received, I hereby guaranty payment of the within note, and waive demand and notice of protest on same when due. A. H. WARREN. 10 Pd. to Warren, 7--9--87. Pay M. H. Southwick, cashier, or order, for collection and rets., account of Commercial Bank of B. M. Webster, Essex, Iowa. B. M. WEBSTER, per E. P.” To this note the defendant below (plaintiff in error) interposed-- First, a general denial; and, second, alleged in his answer: “That the said note was given to A. H. Warren upon an executory contract and agreement for medical treatment to be rendered, and a cure to be effected, in the case of defendant's daughter, Paulina Helmer, and upon the full and absolute express guaranty of said A. H. Warren that this said treatment would effect her full and perfect recovery, and, in case he failed to restore her to full and perfect health, this defendant was to be wholly released and discharged from the payment of said note, and from all liability thereon, or for said services. That said A. H. Warren did wholly fail to bring about the recovery of his said patient, Paulina Helmer, or to render her any assistance or benefit whatever, whereby the said contract, agreement, and express guaranty, which constituted the sole and only consideration for said note, entirely failed, and this defendant has received no benefit or consideration whatever therefor. That said A. H. Warren is a traveling doctor, who came to defendant's house without request, directly or indirectly, from this defendant, or any one for him, on or about the 10th day of April, 1887, and falsely and fraudulently represented to this defendant that he was a regular physician, and an expert especially skilled in the treatment of the chronic complaint with which defendant's daughter was suffering, and was a specialist and expert therein, and had full knowledge and experience of and in the cause, treatment, and cure of the same. That he would effect a complete cure in three months, if defendant would pay him $100, and would charge him nothing whatever if he failed so to cure her. To this proposition this defendant agreed, and said A. H. Warren began his pretended treatment, but in the second month thereof informed this defendant that a surgical operation was necessary, which could be performed only by a certain physician of St. Joseph, Mo., whose name is unknown to this defendant, and that he must increase the fee by $110, and then her recovery would be assured. Whereupon this defendant agreed to pay $210, upon express guaranty of her complete cure. That later said A. H. Warren falsely and fraudulently represented to this defendant that he had been obliged to send for the physician from St. Joseph, Mo., a second time, and that the latter, being unable to come, had sent a substitute, and that this defendant must again increase the fee by $100, and was now indebted to him, the said A. H. Warren, in the sum of $310 fees, and $35 additional for expenses, but assured the defendant that said operation had been successful, and that his daughter was now completely cured, and would, under his continued treatment, be fully restored to health. Upon these false and fraudulent representations of cure and of future attendance, this defendant was induced to give said A. H. Warren a horse at the agreed price of $135.00, and this said...