Piper v. Neylon

• Decision Date: 31 January 1913
• Docket Number: 17,803
• Parties: JOHN F. PIPER, APPELLEE, v. JOHN NEYLON, APPELLANT
• Court: Nebraska Supreme Court

139 N.W. 836

93 Neb. 51

JOHN F. PIPER, APPELLEE, v. JOHN NEYLON, APPELLANT

No. 17,803

Supreme Court of Nebraska

January 31, 1913

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

Shepherd & Ripley and J. B. Strode, for appellant.

Burkett Wilson & Brown, contra.

OPINION

BARNES, J.

This case is before the court on a third appeal. As was stated in Piper v. Neylon, 88 Neb. 253, 129 N.W. 277: "This is a suit on a promissory note for $ 700 dated December 26, 1901, and due July 1, 1903. The petition contains a copy of the note, and in substance states: It was executed by John Neylon, defendant, and was delivered to Lee Parker, payee, from whom John F. Piper, plaintiff, purchased it before maturity for value in the regular course of business, without notice of any equities between the maker and the payee. It was indorsed 'Lee Parker, without recourse,' May 1, 1903, and delivered to plaintiff the same day. After maturity it was placed with the Farmers Bank of Lyons and the First National Bank of Lincoln for collection. Upon defendant's failure to make payment, the note was returned to plaintiff. Defendant in his answer admitted the execution of the note, but stated that it was given in payment of a worthless stallion, which defendant, by false and fraudulent representations of Parker, was induced to buy for breeding purposes alone. The answer further alleges: 'The plaintiff is not an innocent purchaser and bona fide holder of said note, having had at all times full notice and knowledge of the equities between the parties and of the terms of the said sale, and of the representations inducing the same, and that, as defendant is informed and believes, he is not, in fact, the owner of said note, but merely a cover and shield for the said Lee Parker in his attempt to collect the same.' The reply was a general denial. A judgment in favor of defendant was reversed here on a former appeal. Piper v. Neylon, 81 Neb. 481, 116 N.W. 159. The case was retried, and at the second trial defendant again prevailed." On appeal that judgment was reversed for the refusal of the trial court to direct the jury to return a verdict for the plaintiff. On the third trial the district court directed such a verdict, and from a judgment thereon the defendant has prosecuted this appeal.

Defendant contends that the trial court erred in excluding certain evidence from the consideration of the jury. The competency and materiality of all of this evidence was considered upon the last appeal, and it was held that it should have been excluded. We adhere to what was said in that opinion, and defendant's contention on that point must fail.

It is also argued that the court erred in sustaining a motion to strike out the indorsement found on the back of the note in question. It is a sufficient answer to this argument that the indorsement was held by our former opinion to have been improperly received in evidence.

It is further contended that the plaintiff was not an innocent purchaser of the note: First, because he obtained it at a discount; second, it is claimed that he heard the...