Kroncke v. Madsen

• Court: Nebraska Supreme Court
• Writing for the Court: NORVAL
• Citation: Kroncke v. Madsen, 56 Neb. 609, 77 N.W. 202 (Neb. 1898)
• Decision Date: 17 November 1898
• Parties: KRONCKE v. MADSEN ET AL.

56 Neb. 609

77 N.W. 202

KRONCKE

v.MADSEN ET AL.

Supreme Court of Nebraska.

Nov. 17, 1898.

Syllabus by the Court.

1. Under section 329 of the Code of Civil Procedure, evidence concerning transactions and conversations between a witness directly interested in the result of the suit and a person deceased is incompetent, as against the latter's representatives, with certain specified exceptions. In case the evidence of the person deceased shall have been taken and read in evidence by his representatives, in regard to any transaction or conversation, then such interested witness may be examined alone in regard to the facts testified to by such person deceased.

2. One who signs a note as surety is liable for the payment thereof precisely to the same extent as his principal.

3. In an action against the sureties on a note, it is error to instruct the jury that they are not liable thereon to the same extent as the principal, and that the contract of the sureties is to pay only when the liability of the principal is fixed and ascertained by a judgment at law against him, and execution issued thereon, and his property exhausted.

4. Section 511 of the Code of Civil Procedure cannot be invoked in determining the liability of a surety to his obligee or payee, but merely requires that a judgment against a principal and surety shall state which is the principal debtor and which the surety, and provides, as between them, the mode of enforcing the same.

Error to district court, Douglas county; Hopewell, Judge.

Action by Louis W. Kroncke, administrator, etc., against C. Madsen and others. Judgment for defendants, and plaintiff brings error. Reversed.E. Wakeley and A. C. Wakeley, for plaintiff in error.

Robertson & Wigton and B. T. White, for defendants in error.

NORVAL, J.

On April 8, 1893, C. Madsen, Fred A. L. Madsen, and Ane M. Madsen executed and delivered to one Herman G. Kroncke their promissory note for the sum of $1,043.10, payable on demand. On July 9, 1893, C. Madsen died, and subsequently this action was brought by the payee against the other two makers of the note. During the pendency of the suit, plaintiff died, and the action was revived and proceeded in the name of Louis W. Kroncke, as administrator of the estate. C. Madsen signed the note after the names of the other makers had been attached, preceding his signature with the words “Signed as surety,” and then delivered the instrument to the payee. Ane M. Madsen in her answer alleges that at the time she signed the note she was the wife of C. Madsen, and was possessed of certain real estate, and that she did not sign with reference to, or upon the faith and credit of, her separate property, or with the intent to bind the same. Her answer, as well as that of Fred A. L. Madsen, avers that C. Madsen received the entire consideration of the note, and that each defendant executed the said instrument “with the express agreement and understanding with all parties concerned that the said C. Madsen, whose name appears to said instrument as having signed the same as surety, should sign said note as principal and one of the makers thereof, without limitation as to his liability; that this defendant was surety only upon said note for said C. Madsen; that when this defendant signed said note the said C. Madsen had not yet signed the same, but that it was agreed and understood that the said note should not be delivered to the plaintiff until the said C. Madsen should sign the same as one of the makers thereof; that without the defendants' knowledge and consent, and contrary to said agreement, said note was signed by said C. Madsen with the words, preceding his signature, ‘Signed as surety;’ and that the said note was, without the knowledge and consent of the defendant, and without authority, delivered to the plaintiff after having been so signed by said C. Madsen.” These allegations were put in issue by the reply of plaintiff. A verdict was returned in favor of the defendants, and plaintiff brought here for review the judgment entered thereon.

The trial court permitted the defendant Fred A. L. Madsen, over the objections of plaintiff, to testify to a conversation between him and the deceased, Herman G. Kroncke, with respect to the signing of the note in suit. This ruling is assigned as error, on the ground that plaintiff is the representative of a deceased person, and the witness was directly interested in the result of the litigation; and section 329 of the Code of Civil Procedure is invoked to sustain the contention. This section provides that “no person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness, unless the evidence of the deceased person shall have been taken and read in evidence by the adverse party in regard to such transaction or conversation, or unless such representative shall have introduced a witness who shall have testified in regard to such transaction or conversation, in which case the person having such direct legal interest may be examined in regard to the facts testified to by such deceased person or such witness, but shall not be permitted...