Murray v. Schneider
| Citation | 90 N.W. 206,64 Neb. 484 |
| Parties | MURRAY v. SCHNEIDER ET AL. |
| Decision Date | 17 April 1902 |
| Court | Nebraska Supreme Court |
Instruction complained of examined, and held to properly define the law upon the issue made by the pleadings, and to be applicable to the evidence given upon the trial. The instruction as given is therefore approved.
Commissioners' opinion. Department No. 2. Error to district court, Douglas county; Keysor, Judge.
Action by Thomas Murray against Herman Schneider and others. Judgment for defendants, and plaintiff brings error. Affirmed.I. J. Dunn, for plaintiff in error.
Martin Langdon and J. O. Detweiler, for defendants in error.
On the 4th day of September, 1897, Thomas Murray, plaintiff in error, filed his petition in the district court of Douglas county against Herman Schneider, John Stave, William Schneider, and August Schneider, to recover the sum of $254.84, with interest, upon a certain promissory note given by the said defendants to the plaintiff on February 19, 1891. The petition was in the usual form. In answer thereto Herman Schneider admitted the execution and delivery of the promissory note, and alleged that on or about the 18th day of December, 1891, Thomas Murray purchased of and from the defendant Herman Schneider certain personal property amounting to the sum of $247.10; that it was agreed by and between himself and the said Murray that this sum was to be credited upon the note in question; that he had paid the balance of the note, and that there was nothing due from him to the said plaintiff,--and prayed that the action be dismissed at plaintiff's cost. The other defendants answered to the same effect, but alleged that they signed the note as security for the defendant Herman Schneider. They also alleged that the plaintiff, Thomas Murray, purchased the personal property mentioned in the answer of Herman Schneider, and agreed with them that the proceeds of this property, amounting to $247.10, should be applied upon the note in suit; that there was a further payment of $7.94 in cash, together with the interest; and they therefore denied that there was anything further due upon the note, and alleged that the same was fully paid and settled. To these answers the plaintiff filed a reply in the form of a general denial, and which contained a further allegation admitting that the property mentioned in said answers was purchased by him, but that he applied the proceeds thereof to the payment of other debts of the defendant Herman Schneider. On these issues a trial was had to a jury, and after the introduction of the evidence, and the giving of the instructions by the court, the jury returned a verdict against the defendants for the sum of $66.60,--it thereby appearing that, on the question of the agreement to apply the proceeds of the sale of the personal property to the payment of a portion of the note in question, the jury found for the defendants; that, on the question as to whether the balance of the note had been paid or not, their finding must have been for the plaintiff. A motion for a new trial was filed and overruled, and thereupon judgment was rendered in favor of the plaintiff upon the verdict for $66.60. From this judgment the plaintiff brings the case to this court by petition in error.
In the brief of plaintiff in error but one assignment is urged upon our attention, which is...
To continue reading
Request your trial