Klosterman v. Olcott

• Decision Date: 23 October 1889
• Citation: 43 N.W. 422,27 Neb. 685
• Parties: JOHN KLOSTERMAN ET AL. v. GEORGE OLCOTT
• Court: Nebraska Supreme Court

43 N.W. 422

27 Neb. 685

JOHN KLOSTERMAN ET AL. v. GEORGE OLCOTT

Supreme Court of Nebraska

October 23, 1889

REHEARING of case reported in 25 Neb. 382.

REVERSED AND REMANDED.

Marquett Deweese & Hall, and S. H. Steele, for plaintiff in error:

As to the first instruction, the error is not cured by a subsequent instruction committing the question to the jury (McPherson v. Wiswell, 19 Neb. 117); and the court made no statement to the jury of the issues as raised by the pleadings, which was error. (Potter v. R. Co., 46 Ia. 399; Dassler v. Wisley, 32 Mo. 498; McKinney v. Hartman, 4 Ia., 153; Sandwich Mfg Co. v. Shiley, 15 Neb. 111.)

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

OPINION

MAXWELL, J.

This action was brought before this court at the January, 1889, term thereof and an opinion filed which is reported in 25 Neb. 382. A rehearing was afterwards granted and the cause again submitted.

Particular objections are urged to the first instruction, which is as follows: "This action is brought by the plaintiff against the defendants upon a written contract entered into between the defendants and one Henry E. Lewis, by the terms of which defendants, in substance, agreed to pay to said Lewis, or his assigns, the amount due upon the several promissory notes introduced in evidence upon this trial, within thirty days after their maturity, in the event the same were not paid by the makers thereof."

In the former opinion it is said: "We see no error in this instruction." A more careful scrutiny of the bond which is the foundation of the action however convinces us that in this we erred. The condition of the bond is that "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 guarantee to the said Lewis and 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."

It will be observed that the bond is to...