Klinck v. Reeder
| Decision Date | 21 December 1921 |
| Docket Number | 21805 |
| Citation | 185 N.W. 1000,107 Neb. 342 |
| Parties | E. C. KLINCK, APPELLEE, v. DAN REEDER: E. ROLLEN SMITH, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Perkins county: CHARLES E ELDRED, JUDGE. Affirmed.
AFFIRMED.
Beeler Crosby & Baskins, for appellant.
Hastings & Hastings, contra.
Heard before LETTON, DEAN and ALDRICH, JJ., CLEMENTS (E. P.) and DILWORTH, District Judges.
The appellee, E. C. Klinck, instituted this action in the district court for Perkins county, Nebraska, against the appellants, Dan Reeder and E. Rollen Smith, to recover the remainder due on three promissory notes, executed by the defendants in favor of the plaintiff.
One L O. Pfeiffer, as friend of E. Rollen Smith, applied to the court for the appointment of a guardian ad litem for Smith, stating that he was a minor, and the court thereupon duly appointed one John B. Beveridge as such guardian ad litem. The guardian ad litem filed an amended answer on behalf of said minor, E. Rollen Smith, wherein he admits the signing of the notes set forth in plaintiff's petition, and alleges that he signed said notes jointly with the defendant Dan Reeder; and as a defense alleges that, at the time of signing said notes, he was a minor, and that he would not attain his majority until July 1, 1920, the day the said amended answer was filed; and that said notes were not given in payment for necessaries of life for said defendant, but were in part payment of the purchase price of a certain tractor; that, at the time of the execution of said notes, said Smith and the codefendant Reeder were operating tractors as partners, but that at about two weeks after the execution of said notes said partnership was dissolved, and the said minor defendant disposed of his interest in the machine so purchased of appellee to the defendant Dan Reeder, and that the partnership between the two defendants was dissolved; that the plaintiff had full knowledge of these facts, and of the turning over of said tractor to said Reeder, and also of the fact that said Reeder traded said tractor for a larger tractor, but that the minor defendant had no interest therein; that, at the time of trading said tractor for the larger tractor, the plaintiff promised to release said minor defendant and take his name from said notes, and that the plaintiff knew all that time that the defendants had made settlement of all their partnership interests, and had full knowledge that the defendant Dan Reeder had assumed the obligation as represented by said notes, and consented thereto.
The plaintiff filed a reply, denying each and every allegation of new matter contained in said amended answer of the defendant, and further alleged that the said minor defendant had for many years been engaged in active business for himself, and had for several years prior to the execution of the notes sued upon transacted business both as an individual and as a full partner of the defendant Dan Reeder; that the consideration for the notes sued upon was a tractor, sold by the plaintiff to the defendants, and that shortly after getting possession of said tractor the defendants disposed of the same and took the proceeds thereof, and have never tendered the plaintiff either the tractor or the proceeds therefor. Later the plaintiff filed an amended reply, in which he alleged, in addition to the facts set forth in his original reply, that at the time of said original transaction, and prior to the exchange of said notes and tractor, the plaintiff asked the said defendant E. Rollen Smith if he was doing business for himself, and that said defendant told the plaintiff that he was doing business for himself and had been for some time past; that said representations were fraudulently made, and were so known by the said E. Rollen Smith at the time, and that plaintiff believed said statements to be true and acted and relied upon said statements so made, and, so relying thereon, sold the defendants the tractor and took their notes therefor; and that said minor defendant E. Rollen Smith, by reason of said false and fraudulent statements so made at the time of said transaction, believed, acted upon, and relied upon by the plaintiff, is now estopped from asserting or claiming that at the time of the execution of said notes he was a minor under the age of 21 years.
No service was had on the defendant Reeder. The case was dismissed as to him and proceeded against the minor defendant E. Rollen Smith, alone. The case was submitted to the jury, which returned a verdict in favor of the plaintiff and against said minor defendant for the remainder due on said notes.
It is urged that the verdict is not supported by the evidence. While there was a conflict in the evidence upon some of the matters in dispute, yet, from an examination of the record we consider that the jury were well justified in returning the verdict which it did, and that there was sufficient evidence to support it. The...
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