Knight v. Kenney
| Decision Date | 23 November 1899 |
| Citation | 59 Neb. 274,80 N.W. 912 |
| Parties | KNIGHT ET AL. v. KENNEY. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Judgment in an action in the county court upon a promissory note was presented to the district court for review by petition in error in which there were two assignments, one of which raised the question of the sufficiency of the pleadings for the plaintiff in suit to sustain the judgment. In the district of the court to which the cause was removed by petition in error there were several judges of the district court, one of whom heard and sustained the petition in error, reversed the judgment of the county court, and retained the cause for trial in the district court. At a trial of later occurrence another judge presided. The parties had, prior to the trial, stipulated that the trial be upon the pleadings which had been filed in the county court, and the trial so proceeded to verdict for the plaintiff and a judgment thereon. Held, the judgment was not erroneous, as a reversal of the ruling of the judge who sustained the petition in error, since another element entered into the consideration which led to the later ruling,--that of the evidence.
2. That for a promissory note in suit by an indorsee there was a lack or want of consideration, the consideration has failed, or that it has been paid prior to its transfer, of any or all of which the indorsee had notice at or prior to the acquirement of title to the paper, or for any other legal reason they exist as equities against the debt of the note in his hands, are defenses, and to be pleaded in the answer for the party defendant; a general denial in the reply to the answer will join the issues, and the burden of proof of such issues is with the defendant.
3. Matters pleaded and admitted need no proof.
4. Variances between allegation and proof, which are immaterial or not prejudicial, do not call for a reversal of a judgment.
5. Objections to testimony examined, and held without force.
6. A purchaser for value of a negotiable note from an innocent holder thereof acquires the title to it free from equities and defenses which existed against it as between the original parties to the paper. Koehler v. Dodge, 47 N. W. 913, 31 Neb. 328.
7. A statement in writing, which appeared on the back of a negotiable promissory note (it is quoted in the opinion herewith), held not to be notice to purchasers of the note of infirmities of the paper, if any existent.
8. Evidence held sufficient to sustain the verdict.
Error to district court, Douglas county; Scott, Judge.
Action by James M. Kenney against S. C. Knight and another. Judgment for plaintiff. Defendants bring error. Affirmed.
Lane & Murdock, for plaintiffs in error.
Thomas & Nolan, for defendant in error.
This action was instituted by defendant in error in the county court of Douglas county to recover an amount alleged to be his due as the second indorsee of a promissory note. It was alleged in the petition that the note was executed of date August 1, 1887, due three months after date, and that on or about August 28, 1887, the payee of the note indorsed, sold, and delivered it to J. W. Gross, who indorsed, sold, and delivered it to the defendant in error. The lack of payment of the note was pleaded, also the amount due, etc. In the answer it was stated that the note in suit had its origin in some real-estate transaction to which the plaintiff in error was a party, and as a part of which he executed ten promissory notes, in the sum of $30 each, which were, per agreement of the real-estate transaction, to accompany the contracts merely to evidence the dates and amounts of payments to be made in compliance with the terms of the contracts, and were to have no separate existence or force; that the $300 note in suit was a renewal of the ten: that there was no consideration for either the ten notes or the one declared upon herein; and, further, that the amounts due upon the real-estate contracts had been fully paid; that the note sued upon was not transferred before its maturity nor for value, but was fraudulently put into circulation, with a purpose to cheat and defraud the parties who were sued; and that the defendant in error had notice of the infirmities of the note, or that it had been made without consideration, and that the amount, of which it was a mere memorandum, had been paid. It was further pleaded that the real-estate contracts and the accompanying notes had been assigned to the Home Investment Company, and thereby it had succeeded to all the rights of the payee of said contracts and notes; that the company had agreed to assume all liabilities under the terms and conditions of the contracts of E. E. Finney, the original party payee therein; and that the company was the owner of the note in suit when it was transferred. The reply was a general denial. As a result of a trial in the county court, there was judgment for the defendant in error.
It appears that in the county court plaintiffs in error had moved that the Home Investment Company be made a party defendant, and the motion had been denied. An error proceeding was prosecuted to the district court of Douglas county, and in the petition it was set forth: ...
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