Omaha Nat. Bank v. Walker

• Citation: 5 F. 399
• Parties: OMAHA NAT. BANK v. WALKER and another.
• Decision Date: 03 January 1881
• Court: U.S. District Court — District of Nebraska

5 F. 399

OMAHA NAT. BANK v. WALKER and another.

United States Circuit Court, D. Nebraska.

January 3, 1881

E Wakely, for plaintiff.

G. M Lambertson, for defendant.

DUNDY D.J.

This suit is based upon a promissory note made by the defendants to one John L. Hazzard, who transferred it to the plaintiff for value before due. The note bears date January 1, 1879 and in terms binds the defendants to pay said John W Hazzard, or order, $1,500, two months after the date thereof, with interest at the rate of 12 per cent. per annum after due. The defendant also agree to pay a reasonable attorney's fee, not exceeding 10 per cent., in case it should be necessary to commence suit to enforce the payment of the note. On the note is found the transfer of the same in the following form, to wit:

'This note is transferred, and the collection of the same guarantied to the holder hereof by

'JOHN W. HAZZARD, 'GEO. HAZZARD.'

The note was duly protested for nonpayment, whereupon suit was commenced against the makers in this court. The defendants answered in due time, and admitted the execution and delivery of the note, but denied-- First, that John W. Hazzard, the payee, had ever transferred the note to the plaintiff; second, that the defendants had ever received any consideration whatever for the making and delivery of the note; and, third, that the plaintiff had actual notice of the object and intention of the parties to the transaction, and consequent knowledge of the want of consideration, at and before the time of the alleged transfer. A jury trial was had, which resulted in the jury returning a general verdict for the defendants.

The plaintiff moved to set aside the verdict for the reasons-- First, that the verdict was not sustained by the evidence; and, second, because of errors committed by the court during the progress of the trial.

There is no sort of doubt whatever about the note having been given without consideration. The proof on that point was abundant, and it was not ever claimed by the plaintiff that any consideration ever passed from either of the Hazards to the defendants, before, at the time of, or since the making of the note, on which such a promise can be supported. On the contrary, it was expressly admitted by the plaintiff before the court and jury, and during the trial, that there was an entire absence and want of consideration for the giving of the note. The note sued on, then, at least between the parties to the original transaction, was a mere nudum pactum, and, as between them, payment of the note could not have been enforced in a court.

The plaintiff sought to obviate this difficulty by showing, or at least attempting to show, that it took the note in the usual course of its business, before the same became due, and without notice of the infirmity of the note. There was however, some testimony which might tend to show that the cashier of the plaintiff had knowledge of the fact that the note was given for a purpose other than the one to which it was applied. At all events, the proof before the jury showing want of consideration for the giving of the note was abundant, and if the jury was justified in acting on such proof, then the verdict must stand unless it be contrary to law. The errors said to have been committed by the court consist, in the main, of two or three written instructions are claimed to be erroneous, and prejudicial to the rights of the plaintiff. It has not been made apparent that the instructions complained of are at all erroneous, nor is it thought that their correctness can well be controverted. But, as I now view the law that applies to this case and must control the rights of the parties, it is wholly immaterial whether the instructions complained of were right or wrong. If the defendants were in a position to enable them to show a want of consideration for the giving of the note, then the verdict of the jury is clearly right; for, as before stated, it was fully conceded...