Klosterman v. Olcott

• Decision Date: 03 January 1889
• Citation: 25 Neb. 382,41 N.W. 250
• Parties: KLOSTERMAN ET AL. v. OLCOTT.
• Court: Nebraska Supreme Court

25 Neb. 382

41 N.W. 250

KLOSTERMAN ET AL.

v.OLCOTT.

Supreme Court of Nebraska.

Jan. 3, 1889.

Syllabus by the Court.

1. The firm of R., W. & W. in the year 1881 entered into a contract with one L., and gave a bond to sell him promissory notes upon certain terms and conditions, and to guaranty the payment of the same without notice in 30 days after the maturity of each note. In November, 1883, the firm of R., W. & W. was dissolved by the withdrawal of R. W. & W. thereupon entered into a new contract, and gave a new bond to L., which provided that W. & W. would guaranty all notes sold to L., and without notice pay such as were not paid 30 days after maturity thereof. Under this arrangement W. & W. procured a large number of notes to be renewed, and transmitted the same to L., and thereby obtained credit for themselves upon their account. Held, that there was sufficient consideration for the bond and contract.

2. That the contract being a direct promise to guaranty the notes, no notice of acceptance was required.

3. Where a court in its first instruction states the object of the action, a party desiring a more explicit instruction upon that point must ask for it.

4. Where usury in the transaction is pleaded, and the testimony is conflicting upon that point, a verdict of the jury, finding there is no usury, will not be set aside, notwithstanding the transactionmay appear to the court as a device to evade the usury laws.

5. The claim that the verdict is excessive, held not sustained.

6. Where testimony has been introduced tending to show an additional liability from the defendant to the plaintiff, the petition may be amended by leave of court.

Error to district court, Lancaster county; CHAPMAN, Judge.

Marquett, Deweese & Hall and Myers, Evans & Steele, for plaintiffs in error.

O. P. Mason, Ryan Bros., and F. W. Lewis, for defendant in error.

MAXWELL, J.

This action was brought by the defendant in error against the plaintiffs in error, in the district court of Lancaster county, to recover upon a certain bond given by the plaintiffs in error. The cause of action is stated as follows:

“The plaintiff complains of the defendants, for that on the 15th day of November, 1883, said defendants made and delivered to Henry E. Lewis, of Lincoln, Neb., the following instrument in writing: ‘Know all men by these presents that we, W. H. Westover and J. Robert Williams, of David City, Butler county, Neb., as principals, and Able Hill, J. Klosterman, and A. F. Coon as sureties, are held and firmly bound unto Henry E. Lewis, of Lincoln, Lancaster county, Neb., his heirs and assigns, in the sum of $10,000, for the payment of which well and truly to be made we jointly and severally bind ourselves, our heirs, our executors, and assigns, firmly by these presents. Given under our hands and seals this 15th day of November, A. D. 1883. The said W. H. Westover and J. Robert Williams are about to sell to the said Henry E. Lewis, within the next two years, promissory notes, secured by chattel or real-estate mortgages, and to indorse such notes to the said Lewis, and have entered into an agreement, as parties of the first part, with said Lewis, as party of the second part, for good and sufficient consideration, therein expressed, to guaranty to the said Lewis, and to his assigns, payment within thirty days after maturity of each and every one of the said promissory notes so sold to said Lewis by them, and indorsed as aforesaid, with accrued interest, and to collect the said notes without expense or charge therefor to the said Lewis, or the assignees thereof, and to waive protest, demand, and notice of nonpayment on each and every one of the said notes so sold to the said Lewis by them; and have agreed with the said Lewis, if any of said notes are not paid within 30 days after maturity, to forthwith pay such note or notes to the said Lewis, or his assigns, and to look to the maker or makers thereof for payment to them of the same, and have expressly stipulated that the said agreement shall be of the same force and effect, between the said parties of the first part and the assignees of the notes sold to said Lewis by said parties of the first part, whether assigned by him with or without recourse, as between said parties of the first part and said Lewis himself: Now, therefore, if the said W. H. Westover and J. Robert Williams shall pay, or cause to be paid, to the said Henry E. Lewis, or to his assigns, within thirty days after their maturity, each and every one of the said notes sold to the said Lewis as aforesaid, with the interest thereon accrued, and shall faithfully perform all the above-mentioned agreements, the above obligation to be void; otherwise to be and remain of full force and virtue.

+----------------------------+
                ¦‘W. H. WESTOVER.    ¦[Seal.]¦
                +--------------------+-------¦
                ¦J. ROBERT WILLIAMS. ¦[Seal.]¦
                +--------------------+-------¦
                ¦ABLE HILL.          ¦[Seal.]¦
                +--------------------+-------¦
                ¦J. KLOSTERMAN.      ¦[Seal.]¦
                +--------------------+-------¦
                ¦A. F. COON.         ¦[Seal.]¦
                +----------------------------+
                

Sealed and signed in presence of

A. C. WOLFENBARGER.'

And the plaintiff avers that he was the purchaser of notes from the said Lewis taken under the above-described agreement, * * * and secured by the bond herein set forth, which said notes [copies of such notes] as are now in possession of said plaintiff, or under his control, or can be obtained by him, * * * were assigned to him by the said Lewis for value received; and that the said notes are overdue, and the space of 30 days and more has elapsed since they became due; and the makers of the said notes fail to make payment of them, and, though requested to pay them, refuse; and the said W. H. Westover and J. Robert Williams have not paid the said notes, or any portion of them, and refuse so to do; and no part of the said notes has ever been paid to the plaintiff; and there is now due from the defendants to the plaintiff thereon the sum of $2,812.04, with interest thereon from November 1, 1885, at the rate of 10 per cent. per annum.”

The answer, which is very long, consists, substantially, of...