Nebraska Nat. Bank of Omaha v. Pennock

• Decision Date: 19 May 1898
• Parties: NEBRASKA NAT. BANK OF OMAHA v. PENNOCK.
• Court: Nebraska Supreme Court

55 Neb. 188

75 N.W. 554

NEBRASKA NAT. BANK OF OMAHA

v.PENNOCK.

Supreme Court of Nebraska.

May 19, 1898.

Syllabus by the Court.

Where a party defendant gave his promissory note in renewal of his past-due note, which had been given partly in consideration of the conveyance to him of certain lots by the payee named on both notes, such maker cannot defeat an action against him on the renewal note, in the hands of an assignee thereof before due, by showing that at the time when said renewal note was executed the payee promised to cause improvements to be made which would enhance the value of the said lots; the time fixed for the performance of such promise being subsequent to the date when the note was in fact assigned to plaintiff.

Error to district court, Douglas county; Hopewell, Judge.

Action by the Nebraska National Bank of Omaha against Henry W. Pennock, begun in Douglas county court, and taken by appeal to the district court, in which judgment was rendered for defendant. Plaintiff brings error. Reversed.Warren Switzler, for plaintiff in error.

Louis D. Holmes, for defendant in error.

RYAN, C.

This action was begun in the county court of Douglas county, from which court, by appeal, it was taken to the district court, in which there was a trial without a jury, and a finding and judgment in favor of the defendant. The recovery was sought by plaintiff on a promissory note in these words and figures, to wit: “$322.04. Omaha, Nebraska, August 13, 1890. On the 13th day of January, 1891, for value received, I promise to pay to the order of the Patrick Land Company of Omaha three hundred twenty-two and .04 dollars, at its office, in Omaha, Nebraska, with interest from this date at the rate of eight per cent. per annum, payable semiannually. In case this note is not paid at maturity, it shall bear interest at the rate of ten per cent. per annum until paid. [Signed] Henry W. Pennock.” The petition was in the ordinary form. The answer contained an averment that said note was indorsed after maturity, and there was a stipulation to the effect that before maturity said note was transferred, by a separate instrument, as collateral security for a note of $5,000 given by the Patrick Land Company to plaintiff. It was further averred in the answer that the note sued on was given to the Patrick Land Company for the purpose of renewing notes held and owned by said company then past due, and subject to all defenses in the hands of said company; that no consideration was given defendant for such renewal; that the same was given as an accommodation to said company, and at the special instance and request of the officers of said company. Plaintiff in this action is the assignee of the renewal note above referred to, and its right to recover cannot be defeated by reason of transactions preceding, and independent of, the making of that note. Brugman v. Burr, 30 Neb. 406, 46 N. W. 644. With respect to the renewal notes, of which that in suit was one, defendant, in his answer, alleged that at the time of making such renewals the Patrick Land Company entered into further and renewed agreements that a street-car service from the center of the city, operated by electricity, would be provided by said company during the coming fall; that said service would be a continuous street-railway service from the center of the city of Omaha through Dundee place, near the lots of defendant,--the cars to run at intervals of not to exceed 15 minutes until 10 o'clock at night; that the note sued on was given in renewal of said former notes, upon such express agreement and representation of said company, and without such agreement and representation defendant would not have renewed the former notes, then past due, and in the hands of the company. It was alleged in the answer that there had been no compliance by the Patrick Land Company with said agreement and representations, by reason whereof defendant had suffered damage in the sum of $1,500. There were other facts pleaded in the answer, but they need not be described, for the finding of the court was limited to the above matters, as clearly appears from the language in the journal entry of its final judgment: “That the defendant, by reason of the failure of the Patrick Land Company to build the street-car line, provide transportation, and make the improvements in pursuance of the agreements made at the time of making said note, suffered damage in the sum of $1,500, that the amount due on the note is $439.58, and that the consideration for said note has therefore failed.” In regard to the renewal of the note in suit there was no evidence, except the testimony of the defendant, which was as follows: “Q. What was the inducement to you to secure the renewal of former notes; the note in suit being one of such renewal notes? A. I would not have made this renewal,--would not have given this note in renewal of notes then past due,--unless Mr. Allen and Mr. Kurtz, as officers of the company, had then agreed to--I have previously stated what the agreement was. I wish to refer to the former agreement now--unless Mr. Allen had made statements to me which I have outlined in my testimony before this, relative to the extension of the street-car service to Dundee within the coming fall of 1890.” The conversation above alluded to had previously been thus described in the testimony of the defendant: “Before executing this last note, which was to take the place and be in renewal of those other notes I have mentioned, I went to the office of the Patrick Land Company, and had several conversations with Mr. Allen, who was then the vice president, and Mr. Kurtz. who was the secretary, at that time, in regard to Dundee place. At that time Mr. Allen informed me that he wished that I would take up these notes past due; and I complained that the company had not fulfilled its agreement to give us rapid transportation, and that it had been impossible for me to sell the lots, and that I was unable to meet the notes; and he said he wanted to get them into proper shape; he did not want to carry this past-due paper, and wanted me to fix it up. And I think nothing was done at the first meeting. Afterwards we had a conversation in which he said that the company was negotiating with the Omaha Street-Railway Company, and that they had practically closed its negotiations; that they had...