McDuffee v. Bentley
| Decision Date | 17 September 1889 |
| Citation | 27 Neb. 380,43 N.W. 123 |
| Parties | MCDUFFEE v. BENTLEY. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. In an action by M. against B. the petition alleged that defendant sold and indorsed, without recourse, to plaintiff a promissory note past due, secured by mortgage on land and chattels; that, upon suit to collect said note, the makers answered, proving that, except as to an insignificant portion of the consideration, the note was given for usurious interest, in which the plaintiff lost the amount thereof, etc. The defendant answered that, at the time of the sale and indorsement of the note by him to plaintiff, he informed the plaintiff of each and every defect therein, etc. The plaintiff moved for an order requiring the defendant to make his answer specific; that he state in what manner he informed the plaintiff of the defects in said note, and of the defenses thereto, and for a further order requiring him to separate his second paragraph, and show what portion thereof is relied upon as a defense, and what portion is intended as affirmative relief, set-off, or counter-claim against the plaintiff, which motion was overruled. Held not reversible error.
2. Held that, when a party on cross-examination asks a witness an immaterial or irrelevant question, he is concluded by the answer, and will not be permitted to call a witness to contradict it.
3. The statute provides that the court must read over all instructions which it intends to give, and none others, to the jury, etc. Held, that the refusal or failure by the court to read to the jury an instruction which it announces as given, and writes thereon as given, and files as such, is a reversible error.
G. R. Chaney and C. E. Davis, for plaintiff in error.
Case & McNevy, for defendant in error.
This cause is brought on error from the district court of Webster county. The plaintiff, in his petition, alleges that on June 1, 1886, he purchased of the defendant, for the consideration of $650, a promissory note, here set out:
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¦“$700.¦RED CLOUD, NEB., April 27, 1885.¦
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One year after date we, or either of us, promise to pay to Mathew R. Bentley, or order, seven hundred dollars for value received, negotiable and payable, without defalcation or discount, at Red Cloud, Neb., with interest at the rate of ten per cent. per annum from date until paid. In case this note is not paid at maturity, and an action is commenced thereon, we agree to pay an attorney's fee of ten per cent. on the amount due, the same to be allowed by the court and included in the judgment.
JOSHUA BRUBAKER.
SARAH R. BRUBAKER.
Due April 27, 1886.
May 15, 1886, received on the within note $120.”
Indorsed:
--That the defendant delivered the same to the plaintiff as a valid obligation, when in fact all of said note, except the sum of $7.75, was usurious, contracted for by defendant with one of the makers, Joshua Brubaker, and which the defendant knew was only good for $7.75 at the time he sold the same to the plaintiff; that plaintiff notified the makers and requested them to pay the note, which they refused to do, but tendered the sum of $22 in payment, which plaintiff refused to accept, and on March 27, 1887, brought suit thereon in the county court of said county against the makers, who kept their tender good, and on April 7th following, a trial was had, and judgment was recovered for $7.75, only, against the makers, and against the plaintiff for $3 for costs of suit; that the plaintiff expended $25 as attorneys' fees in endeavoring to collect the note, which was secured by both real estate and chattel mortgages, and which would have been worth its face, with interest, less the credit of $120, had it not been usurious; that, after the makers had joined issue on a plea of usury, the plaintiff notified the defendant at the Hot Springs of Arkansas of the defense set up, requesting that his testimony be taken to meet the plea of usury if he so desired, to which request the defendant paid no attention; wherefore the plaintiff prays judgment for the amount of money paid and expended, with interest at 10 per cent. from May 15, 1886, on the consideration paid for the note.
1. The defendant answered that, at the time of the indorsement and delivery of the note set forth, he informed the plaintiff, who was fully apprised of each and every defect therein, and defense thereto, and took and received the note with full knowledge of its character, kind, and quality, and at his own risk, and without any warranty, implied or otherwise, on the part of defendant, and denied all allegations not specifically admitted.
2. The defendant further says that the note, with others belonging to him, was indorsed and delivered to plaintiff to the amount of $1,883, in exchange for the N. W. 1/4 of section 35, township 1, range 11, in Smith county, Kan., mortgaged for $300, assumed by defendant, and falsely represented by the plaintiff to be land of good quality, free of breaks, and smooth, with 40 acres under cultivation, worth $2,500, the plaintiff well knowing such were not the facts, and that it was rough, broken land, with little or none of it under cultivation, and was worth not more than $1,000. Relying upon the representations of the plaintiff as to the condition and value of said land, the defendant exchanged said notes, including the note set forth, for said land, and indorsed and delivered them to the plaintiff, and assumed the payment of the $300 mortgage on the land. At the time of such exchange the land was in a condition adverse and contrary to the plaintiff's representations and warranty, and was not worth more than $1,000, wherefore the defendant asks judgment against the plaintiff in damages for the sum of $1,483 and costs of suit.
The plaintiff's motion for an order requiring the defendant to make the first paragraph of his answer more specific; that he state in what manner he informed the plaintiff of the defects in said note, and the defenses thereto, and what particular defects and defenses were made known to him by defendant, and in what manner the defendant was relieved from his warranty in the sale of said notes; and for a further order requiring him to separate his second paragraph so as to show what portion thereof is relied upon as a defense to the plaintiff's cause of action, and what portion is intended as affirmative relief, set-off, or counter-claim against the plaintiff,--was argued by counsel, and was overruled by the court, to which ruling the plaintiff took exceptions in due form.
The plaintiff's reply admits that he exchanged the land described with the defendant for various notes, in...
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