Ludden v. Marsters

• Decision Date: 19 November 1884
• Citation: 21 N.W. 442,16 Neb. 654
• Parties: SYLVANUS LUDDEN, PLAINTIFF IN ERROR, v. SAUL MARSTERS, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

21 N.W. 442

16 Neb. 654

SYLVANUS LUDDEN, PLAINTIFF IN ERROR, v. SAUL MARSTERS, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 19, 1884

ERROR to the district court of Jefferson county. Tried below before WEAVER, J.

AFFIRMED.

B. S Baker, for plaintiff in error.

W. O Hambel, for defendant in error.

OPINION

COBB CH. J.

The facts in this case are as follows: Marsters, defendant in error, became indebted to S. Ludden, plaintiff in error, in July, 1877, in a real estate transaction, in the sum of about eight hundred dollars, which was evidenced by two notes and a mortgage, and as a further security therefor pledged to the said Ludden two notes given by James W Divilbliss for $ 380.00, with interest and attorneys' fees, secured by mortgage on real property in Illinois, the said Ludden agreeing in writing with the said Marsters that when the said two notes owing to him, the said Ludden, should be paid, he would deliver said pledged notes to him, the said Marsters, or the amount for which they call. One of the pledged notes was collected by the said Ludden, and the proceeds applied on the said notes and mortgage from Marsters to Ludden. The other note, being for $ 280, due Jan. 1, 1879, with interest at ten per cent after maturity, and $ 25 attorneys' fees, was when due returned to Ludden from Illinois unpaid. Suit was commenced by Marsters against Sylvanus Ludden on the 5th day of December, 1882, for the value of the last mentioned note, having paid off the two notes and mortgage for which the same was pledged, and demanded the return of the said pledged note or the amount for which it called, according to the terms of the written agreement or receipt above referred to. Ludden, the defendant, answered in said action denying all indebtedness to the plaintiff and alleging as follows, to-wit: "That when the two hundred and eighty dollar note above mentioned (being the note in controversy) became due, this defendant forwarded the same for payment, but the same was dishonored and unpaid, and said note was returned to this defendant so unpaid. That afterwards, to-wit, on or about the 10th day of January, 1879, an oral agreement was made and entered into by and between the plaintiff and this defendant, and upon a valuable consideration, moving between the plaintiff and this defendant, and to the effect, to-wit: that this defendant was to forward said note to S.D. Ludden, for the purpose of having the same collected, and that when said note was so forwarded to said Ludden by this defendant, he had performed all and every act on his part to be by him performed, and was by said agreement to be fully released and discharged from all liabilities and obligations on his part to the plaintiff under and by virtue of any former contract or agreement made and entered into by and between plaintiff and this defendant relative to said two hundred and eighty dollar note, that immediately after the making of said oral agreement and in pursuance of, and as a part of the consideration thereof, this defendant forwarded said note to the said Ludden, and from that time to the present has he had any interest in said note whatever,...