Ohio Nat. Bank of Columbus v. Gill Bros.

• Decision Date: 05 January 1910
• Docket Number: No. 15,873.,15,873.
• Parties: OHIO NAT. BANK OF COLUMBUS, OHIO, v. GILL BROS. ET AL.
• Court: Nebraska Supreme Court

85 Neb. 718

124 N.W. 152

OHIO NAT. BANK OF COLUMBUS, OHIO,

v.GILL BROS. ET AL.

No. 15,873.

Supreme Court of Nebraska.

Jan. 5, 1910.

Syllabus by the Court.

In an action on a promissory note declared upon in the usual form, the answer being a general denial, the burden of proof is on the plaintiff to show the execution and delivery of the instrument sued on, and evidence in defense, tending to show a material alteration of the note after its execution and delivery, does not shift the burden of proof to the defendant.

A verdict of the jury in an action at law, rendered on conflicting evidence, will not be set aside by a reviewing court.

Appeal from District Court, Holt County; Westover, Judge.

Action by the Ohio National Bank of Columbus, Ohio, against Gill Bros. and others. Judgment for defendants, and plaintiff appeals. Affirmed.R. R. Dickson, for appellant.

R. M. Johnson and M. F. Harrington, for appellees.

BARNES, J.

The plaintiff, who is the appellant here, commenced this action in the district court of Holt county to recover a balance due upon a negotiable promissory note executed and delivered on the 8th day of July, 1903, by the defendants to McLaughlin Bros. for the sum of $1,000, with interest at 6 per cent. per annum, payable on the 1st day of July, 1905. The petition is in the usual form, and alleges that the plaintiff purchased the note in the due course of business, before due, for a valuable consideration, and without notice of any defense thereto, and was at the time of the commencement of this action the owner and holder thereof. All of the defendants except Gill Bros. answered plaintiff's petition by way of a general denial. The answer of Gill Bros., in addition to a general denial, alleged that proceedings in bankruptcy were pending against them in the District Court of the United States for the District of Nebraska. There was a proper reply, and upon the issues thus joined a trial was had to a jury. There was a verdict and judgment for the defendants, and plaintiff has appealed.

It appears that to maintain the issues on its part the plaintiff introduced the deposition of Robert McLaughlin, a member of the firm of McLaughlin Bros., the payee named in the note. He testified that the note was given to him for McLaughlin Bros. by the defendants, in part payment for a horse which he sold to the defendants at the time of its execution, that he saw each and all of the defendants sign the note in suit, and that it was then in the same condition as it is now. The plaintiff also showed, by competent evidence, that it purchased the note several months before it became due, and paid the sum of $1,028.39 to McLaughlin Bros. therefor, in the usual and ordinary course of business, and without notice that any defense could be made thereto. Thereupon the note was introduced in evidence, which appears regular upon its face, and bears no evidence of having been changed or altered in any respect. Evidence was also produced showing that no part of the note had been paid except the sum of $66.66, which appears to have been paid by one John Higgins, and that the amount due from the defendants to the plaintiff was $933.34 with interest thereon from July 1, 1905. The plaintiff thereupon rested its case, and the defendants thereafter, to maintain the issues on their part, testified, in substance, that at the time they signed the note the words “or order” had been stricken out in some manner, either with a pencil or pen and ink, or otherwise, so that the note they executed and delivered was nonnegotiable,and that if the note in suit was the one they signed, it had been altered and materially changed, in that the words “or order” now appear therein. Two of the witnesses testified that they never signed the note,...