Laboree v. Klosterman

• Decision Date: 07 October 1891
• Citation: 33 Neb. 150,49 N.W. 1102
• Parties: LABOREE v. KLOSTERMAN ET AL.
• Court: Nebraska Supreme Court

33 Neb. 150

49 N.W. 1102

LABOREE

v.KLOSTERMAN ET AL.

Supreme Court of Nebraska.

Oct. 7, 1891.

Syllabus by the Court.

1. The assignment in a motion for a new trial of “errors of law occurring at the trial” is sufficient to entitle a party to review the rulings of the district court on the admission or rejection of testimony.

2. Collection registers or loan registers are inadmissible in evidence as books of account.

3. A witness may refresh his memory from a memorandum made at or near the time the transaction mentioned in it took place, even though the memorandum was not made by himself, if, after seeing it, he has a personal recollection of the facts therein stated, and can testify of them of his own recollection.

4. Such memorandum is admissible without the corroborating testimony of the person who made the same, if beyond the reach of the process of the court, his whereabouts being unknown, upon proof of his handwriting.

5. Error cannot be predicated upon the exclusion of testimony, where it is subsequently received in evidence.

6. The firm of W. & W. gave a bond to L., with sureties, by the terms of which the sureties guarantied the payment, 30 days after their maturity, of all notes secured by chattels or real estate, which W. & W. should sell to L. Held, that the sureties are not liable for the payment of any note transferred by their principals to the obligee in the bond, for a consideration other than money at the time paid or promised to be paid.

7. A verdict will not be set aside for the giving of an instruction uncalled for by the evidence, if not prejudicial to the rights of the party complaining.

8. When a material fact may be inferred from the testimony in a case, it is proper to submit such inference to the jury by instruction.

9. Held no reversible error in the charge of the court.

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

Action by Charles K. Laboree against John Klosterman and others on a bond. Judgment for plaintiff and for certain defendants. Plaintiff brings error. Affirmed.Robert Ryan, O. P. Mason, and F. W. Lewis, for plaintiff in error.

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

NORVAL, J.

This suit was brought by the plaintiff in error against J. Robert Williams and W. H. Westover as principals, and John Klosterman, Abel Hill, and Archibald F. Coon, as sureties, upon a certain bond, given by the defendants to one Henry E. Lewis, of which the following is a copy: “Know all men by these presents, that we, W. H. Westover and J. Robert Williams, of David City, Butler county, Nebraska, as principals, and Abel Hill, J. Klosterman, and A. F. Coon as sureties, are held and firmly bound unto Henry E. Lewis, of Lincoln, Lancaster county, Nebraska, 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 condition of this obligation is such that whereas, the said W. H. Westover and J. Robert Williams are about to sell to said Henry E. Lewis, within the next two years, promissory notes secured by chattel or real-estate mortgages, and to indorse the said notes to the said Lewis, and have entered into an agreement, as parties of the first part, with the 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 promissory notes so sold to the 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 assigns thereof, and to waive protest, demand, and notice of non-payment on each and every one of the notes so sold to the said Lewis by them, and have agreed with the said Lewis, if any of the said notes are not paid within thirty 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 notes sold to said Lewis by said parties of the first part, whether assigned 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 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 in full force and virtue. W. H. WESTOVER. J. ROBERT WILLIAMS. ABEL HILL. J. KLOSTERMAN. A. F. COON. Sealed and signed in the presence of A. G. WOLFENBARGER.”

The plaintiff alleges, in effect, that said Westover and Williams sold to said Lewis notes against the following named parties, and for the amounts named, to-wit: E. F. Ruth, $308.40; W. A. Baxter, $117.75; S. S. McElvain, $105.87; Charles E. Warren, $130.53; Richard Duval, $186.95; John Esch, $249.81; A. S. Wright, $127.75; J. W. Taylor, $118.90; Charles H. Simpson, $633.17; S. J. Hardman, $91.45; Henry Draper, $46; James Dowers, $85.90; P. S. Gaskill, $54; John Baker, $120; John Bredwell, $120.35. That each of said notes, except the one made by Simpson, was indorsed: “Pay to H. E. Lewis, or order; protest, demand, and notice of non-payment waived. WESTOVER & WILLIAMS.” That said Lewis sold and assigned all of said notes to the plaintiff. That said notes are more than 30 days past due, and no part thereof has been paid, and that there is due thereon from the defendants to the plaintiff the sum of $2,098.37, with interest from November 1, 1885. The defendants Hill, Coon, and Klosterman filed an answer, which consists of (1) a denial of each allegation of the petition not expressly admitted; admits the signing of the bond, but denies its delivery, and alleges that the bond was without consideration. (2) Alleges that the bond was delivered to Lewis with the express understanding and agreement that said Lewis would furnish to said Westover & Williams five to ten thousand dollars more money to handle and loan on chattel mortgage security, which was the only thing that caused said bond to be executed and delivered; that Lewis never furnished any money whatever to loan. (3) Denies that the notes described in the petition were sold by Westover & Williams to Lewis; that, if Lewis paid any consideration for the notes, he got them by exchange for other notes, or in payment of a debt claimed to be due him from Westover & Williams. (4) That none of the notes mentioned in the petition were secured by mortgage. (5) That the arrangement whereby the notes were acquired was simply a device to cover the exaction of usury. (6) That the notes given by E. F. Ruth, S. S. McElvain, Charles E. Warren, John Bredwell, Richard Duval, John Esch, A. S. Wright, Jr., J. W. Taylor, S. J. Hardman, Henry Draper, James Dowers, P. S. Gaskill, and John Baker were paid by the makers thereof, and by Westover & Williams; that the note of Charles H. Simpson was never in the hands of Westover & Williams, and was never by Lewis bought from Westover and Williams; that none of the notes were secured by mortgage; that the notes of W. A. Baxter, S. S. McElvain, and A. S. Wright, Jr., were renewals of old notes held by Lewis, and that Westover & Williams only acted as the agents of Lewis, in taking them. The reply admits the payment of the Bredwell note; denies all other averments of the answer; and alleges that the renewal of the Simpson note was made with the written consent of the defendants Klosterman and Coon that their liability should not be varied from what it had been on the original note, if thereon liable. A verdict was returned for Coon, Hill, and Klosterman, and also in favor of the plaintiff and against Westover & Williams.

Numerous rulings of the trial judge on the admission or exclusion of testimony are assigned for error in this court. The defendants in error contend that these rulings cannot be reviewed, for the reason that the alleged errors were not pointed out in the motion for a new trial. The third assignment in the motion is “for errors of law occurring at the trial, duly excepted to.” This assignment does not specifically point out the rulings complained of, and in several cases reported in the earlier Nebraska Reports, commencing with Railway Co. v. McCartney, 1 Neb. 402, it has been held that such an assignment in a motion for a new trial is too general to challenge the attention of the trial court to its rulings on the admission or rejection of testimony, and that the motion must specifically point out the evidence admitted or excluded. But these decisions are not applicable to the statute now in force governing motions for new trials. It will be observed that the assignment in the motion in this case is in the language of the eighth or last subdivision of section 314 of the Code, and is one of the grounds upon which a new trial may be granted. While it is true this section was in force at the time the decisions referred to were made, yet the legislature subsequently, in 1881, amended section 317 of the Code by providing that it shall be sufficient, in assigning the grounds of the motion, to state the same in the language of the statute, and without further or other particularity. It is evident that it is within the scope and meaning of the statute, that all errors occurring during a trial, which, to be available in the supreme court, must be preserved by bill of exceptions, such as the rulings on the admission...