Nickerson v. Needles

• Decision Date: 30 June 1891
• Citation: 49 N.W. 433,32 Neb. 230
• Parties: NICKERSON v. NEEDLES.
• Court: Nebraska Supreme Court

32 Neb. 230

49 N.W. 433

NICKERSON

v.NEEDLES.

Supreme Court of Nebraska.

June 30, 1891.

Syllabus by the Court.

Errors of law occurring at the trial will not be reviewed in the supreme court upon a petition from the county court to the district court in a civil action tried to the county court without a jury.

Error to district court, Butler county; SMITH, Judge.

Action by one Needles against one Nickerson on a promissory note. Judgment for plaintiff. Defendant appeals. Affirmed.

Wm. M. Clark, for plaintiff in error, citing, in support of the proposition that parol evidence is admissible to show that the blank indorsement made on a promissory note was made without recourse, the following cases: Harrison v. McKim, 18 Iowa, 485;Geneser v. Wissner, 69 Iowa, 119, 28 N. W. Rep. 471; Doolittle v. Ferry, 20 Kan. 230; Castrique v. Buttigieg, 10 Moore, P. C. 94; Bridge, etc., Co. v. Evans, 4 Wash. C. C. 480; Ross v. Espy, 66 Pa. St. 481; Mendenhall v. Davis, 72 N. C. 150;Taylor v. French, 2 Lea, 257; Smith v. Morrill, 54 Me. 48; Hays v. May, Wright, 80; Lewis v. Williams, 4 Bush, 678;Drummond v. Yager, 10 Ill. App. 380;Sandford v. Norton, 14 Vt. 228;Cook v. Southwick, 9 Tex. 615; Burton v. Hansford, 10 W. Va. 470; Strong v. Riker, 16 Vt. 554;Baker v. Briggs, 8 Pick. 122;Sill v. Leslie, 16 Ind. 236;Rey v. Simpson, 22 How. 341;Seymour v. Mickey, 15 Ohio St. 515; Perkins v. Catlin, 11 Conn. 213; Carroll v. Weld, 13 Ill. 682; Clark v. Merriam, 25 Conn. 576; Smith v. Finch, 2 Scam. 321;Harris v. Pierce, 6 Ind. 162;Boynton v. Pierce, 79 Ill. 145;Levi v. Mendell, 1 Duv. 77;Leech v. Hill, 4 Watts, 448;Chandler v. Westfall, 30 Tex. 476;Lacy v. Lofton, 26 Ind. 324;Pierse v. Irvine, 1 Minn. 369, (Gil. 272;) Downer v. Cheseborough, 36 Conn. 39; Dale v. Gear, 38 Conn. 15; Cole v. Smith, 29 La. Ann. 551.W. W. Stowell, for defendant in error.

COBB, C. J.

This action was brought by the defendant in error in the county court against the plaintiff in error on the following promissory note: “Edgar, Neb., June 4th, 1887. On or before November 1st, 1887, after date, for value received, I or we promise to pay to R. K. Nickerson or order, two hundred and ninety dollars, at the office of W. M. Clark, Edgar, Nebraska, with interest at ten per cent. per annum from maturity until paid. If suit is instituted on this note, we agree to pay ten per cent. on the amount then due as agreed, assessed, and liquidated damages for non-fulfillment of contract, the same to be allowed by the court, and included in the judgment. [Signatures] NELLIE V. WOLFE, (P. O. Alma, Neb.) O. D. WOLFE. Due Nov. 1, 1887.” The plaintiff in the county court alleged that on May 1, 1888, the defendant Nickerson indorsed his name on the back of the note, and delivered it to plaintiff, and on November 8, 1888, payment of the note was demanded of the makers, which was refused, and notice was duly given to the indorser; that no part of the note has been paid, and that there is now due thereon the principal $290, with interest at 10 per cent. from November 1, 1887, and 10 per cent. additional upon the whole amount for non-fulfillment of contract, as expressed in the note. Service was had against the defendants Nellie V. Wolfe and Nickerson, and judgment taken against the maker by default. The indorser answered, denying the plaintiff's allegations, but admitting the execution and delivery of the note by the makers to the indorser, and denied signing over the note on May 1, 1888, but set up that prior to November 1, 1887, he assigned the note to Stout and Voorhees, as collateral security for the payment of $100, which was paid and satisfied prior to November 1, 1887, and the collateral security was restored; that on June 5, 1888, he sold the note to the plaintiff in part payment of an indebtedness of $560 due the plaintiff in four to six months thereafter, who took the note without recourse on this defendant; that the consideration of so taking the note without recourse was that of defendant's paying the $560 before due, and transferring the note on that account at its face principal, $290, allowing the plaintiff the interest from date to maturity. The plaintiff replied, denying the defendant's answer except as to the transfer to him of the note sued on. There was a trial to the county court on September 16, 1889, with judgment for the plaintiff for $344.40 and $12 costs, with 10 per cent. interest on the judgment until paid. On October 14, 1889, the cause was taken to the district court on error, where it was heard on the following: “(1) The court erred in not allowing the defendant in the county court to introduce parol evidence showing that the blank indorsement on the note sued on was without recourse, and as a different contract than that implied by law. (2) The court erred in rendering judgment on the note for the reasons stated, and because the note had never been protested for nonpayment by payors, so as to create any liability against indorser.” On February 14, 1890, there was a trial in the district court. The errors were overruled, and the plaintiff in error's petition was dismissed, to which exceptions were duly taken, and the cause brought to this court, to be reviewed on the same grounds.

The counsel for the plaintiff in error has submitted an astute and plausible and a convincing argument, were it applicable to his action, that the plaintiff in the court below must recover, if at all, upon the actual contract controlling the transfer and indorsement of the note at the time of its sale and delivery to the plaintiff....