Lombard v. Mayberry

• Decision Date: 31 October 1888
• Citation: 24 Neb. 674,40 N.W. 271
• Parties: LOMBARD v. MAYBERRY ET AL.
• Court: Nebraska Supreme Court

24 Neb. 674

40 N.W. 271

LOMBARD

v.MAYBERRY ET AL.

Supreme Court of Nebraska.

October 31, 1888.

Error to district court, Johnson county; BROADY, Judge.

This was an action on a bond by Wallace S. Smith, as principal, and Phineas Jones, Almon Reed, E. W. Smith, Moses Roberts, and Charles N. Mayberry, as sureties, to B. Lombard, Jr., of which the following is the substance: “Whereas, the said Wallace S. Smith has requested the said B. Lombard, Jr., to purchase of him negotiable paper and securities, and, to induce him to do so, has agreed to be responsible as guarantor of payment of such paper at maturity as he may offer to sell, or does sell, or may have heretofore sold, to said Lombard, Jr., now, therefore, it is by the said principal and sureties hereby expressly agreed, undertaken, and guarantied to the said Lombard, Jr., and his assigns, that all and every note and security negotiated by him, sent and remitted for sale, and sold to the said Lombard, Jr., or through his agency and correspondence, is by the said principal and sureties, jointly and severally, guarantied to be paid by the maker thereof to said B. Lombard, Jr., or his assigns, at its maturity, at the office of the said B. Lombard, Jr., in Lincoln, Neb. If not so paid by the maker at maturity, or if so paid by said makers to said Smith, and the amount so paid not remitted or paid to said Lombard or assigns, without delay, or if any such amounts have been already paid to said Smith, and not remitted as aforesaid, within thirty days from this date, pay same to said Lombard; and if not already paid to said Smith, and not now due, then they shall pay same within thirty days of maturity of said note or notes, although no special contract of that character be by them, or either of them, written, or any negotiable paper sold, to said B. Lombard, Jr., or though mere assignment or general indorsement only be on such paper written; it being expressly understood and agreed by the parties to this undertaking that the said Smith has, during the year commencing June 1, 1883, been engaged in buying, taking, and selling, to said Lombard and assigns, negotiable securities, and has sold to said Lombard negotiable securities, amounting to $9,750.12, and intends to continue in the business of buying and selling negotiable securities, and that this undertaking of guaranty is intended to apply to all securities heretofore, as well as hereafter, negotiated to said B. Lombard, Jr., or through his financial agency by said W. S. Smith, whether such securities now exist or are hereafter made, and is for the purpose of giving said Smith credit, and securing to him an opportunity to close up last year's business, and collect himself said securities so sold for said Lombard, and of giving said Smith in his business good standing, character, and credit, to enable him the better to conduct his business, and to obtain sale of securities; and the surety guarantors hereby each severally waive notice from said B. Lombard, Jr., of the purchase or receipt by him from said W. S. Smith of securities, and of the description and amount and of the non-payment thereof, from time to time negotiated, except as they may specially request and inquire information thereof. This undertaking, however, is limited, in amount of loss or default to be chargeable to the sureties, to the sum of $5,000 aforesaid; and in respect to time this undertaking is limited to securities now taken, or which it may be expedient to take, in granting extensions on securities now so held by said Lombard to such an extent as may be best in closing up said business negotiated and sold to said B. Lombard, Jr., or through his agency, prior to June 1, 1885.” There was a verdict and judgment for defendants, and plaintiff brings error.S. P. Davidson, for plaintiff in error.

A. M. Appleget and E. W. Thomas, for defendants in error.

COBB, J.

The plaintiff in error brought this action in the district court of Johnson county, alleging that on May 26, 1884, the defendants in error, Wallace S. Smith, as principal, and Phineas Jones, Almon Reed, E. W. Smith, Moses Roberts, and Charles N Mayberry, as sureties, executed their bond to the plaintiff in $5,000, guarantying the payment at maturity of the several notes and negotiable securities (41 in number) sold by Wallace S. Smith to the plaintiff, and guarantied to be paid to the plaintiff at maturity, at his office in Lincoln, Neb.; and if not paid at maturity by the makers, or if received by said Smith, and not paid to the plaintiff, or if in the hands of said Smith at the date of said bond, and not paid to the plaintiff, the principal and sureties were to pay the same within 30 days from the date of the bond; and if not paid to said Smith, nor yet due, to pay the said notes and negotiable securities within 30 days from maturity, respectively. It is admitted that said Smith, during the year commencing June 1, 1883, had been engaged, as a business, in “taking, buying, and selling to the plaintiff notes and negotiable securities,” and had, at the date of the bond, sold to him an amount of $9,750.12, remaining unpaid, and to which the bond was appliable as security; that it was security for the notes negotiated by said Smith, and also to give him credit to close up his last year's business, and to better enable him to make sale of such securities. It is alleged that said Smith, as principal, and Phineas Jones, Almon Reed, James H. Seay, and Charles N. Mayberry, as sureties, had, on April 3, 1883, executed a prior bond to plaintiff in $5,000, guarantying all the notes and negotiable securities sold by said Smith to the plaintiff prior to June 1, 1884; which bond was subsequently canceled in consideration of the second bond, on which this action is brought, and which is limited to the securities then held, or those that might be taken, in lieu of other securities, necessary to close up the business prior to June 1, 1885. It is alleged that after the execution of the second bond, on which this suit is brought, said Smith proceeded in the closing up of his business until his sureties requested the same to be stopped; that on the execution of the bond the plaintiff relied upon it as a guaranty of the securities, and the ability of the makers, by which the sums then in the hands of said Smith, and not paid over to plaintiff, were allowed to run the 30 days mentioned in the bond. It is alleged that, at the date of the bond, of the aggregate of the securities so purchased and held by the plaintiff, $965.94 was then in the hands of said Smith, of which $600, and no more, was subsequently paid; that of the sum of $9,750.12, the aggregate of the securities held by the plaintiff at the date of said bond, all had been due then more than 30 days, on which not more than $3,200 had been paid to the plaintiff, leaving $5,755.94, of which more than $5,000 was past due, for more than 30 days, at the bringing of this suit. A description of the notes and securities is set forth, being 41 in number, as well as those collected by said Smith, and not paid over to the plaintiff, on which the balance due is $365.94. It is further alleged that the sureties on said bond received from said Smith money and property, as indemnity, amounting to $2,200, which they still hold as security; and that there is now due the plaintiff,on said notes and negotiable securities, $5,755.94, and interest at the commencement of this suit,--$275,--for which judgment is asked against defendants Reed, Roberts, and Mayberry in the sum of $5,000, with interest from July 12, 1884, and costs.

The defendants Reed, Roberts, and Mayberry answered, and denied the allegations that they executed the bonds dated May 26, 1884, and April 3, 1883; that the promissory notes were executed by the makers, or that they were negotiated by said Smith; that said Smith ever collected, or had in his hands, any money that should have been paid to said plaintiff; and they aver that, if the defendant Mayberry signed the bond sued on, his signature was obtained by the fraudulent representations of the plaintiff or his agents that the signatures to the bond above said Mayberry's were genuine, whereas they were forged; and that said Smith, at the date of the bond of May 26, 1884, was a defaulter, and had embezzled money and property of the plaintiff, which the plaintiff knew, but concealed the fact, in order to induce the defendant Mayberry to sign said bond, which was without consideration to said Smith, or to the defendant Mayberry. The plaintiff joined the issues, denying each allegation of the defendants' answer. There was a trial to a jury, and verdict for the defendants.

The court, in its discretion, submitted three special findings to the jury: (1) Did defendant Almon Reed sign the bond sued on? (2) Did defendant Moses Roberts sign the bond sued on? (3) When defendant Mayberry signed the bond in suit, did he believe the names of defendants Reed and Roberts to be their genuine signatures to the bond? The jury found the first and second in the negative, and the third in the affirmative.

The plaintiff filed a motion for a new trial as to Mayberry, which was overruled, and judgment rendered on the verdict; to which exceptions were taken and errors assigned as follows: (1) The verdict is contrary to the evidence. (2) The verdict is contrary to law. (3) For errors of law occurring at the trial. (4) For errors in sustaining defendants' objections to plaintiff's evidence. (5) For errors in sustaining defendants' objections to each of the notes offered in evidence by plaintiff, except the Greenfield and Caven notes. (6) For error in refusing to exclude that portion of witness Davidson's cross-examination as to the signatures of the Winkler notes. (7) For error in overruling plaintiff's objections to improper evidence of defendants. (8) For refusing instructions of plaintiff, Nos. 5 and 6. (9) For refusing and changing instruction of plaintiff, ...