Roberts v. Snow

• Decision Date: 03 October 1889
• Citation: 27 Neb. 425,43 N.W. 241
• Parties: ROBERTS v. SNOW.
• Court: Nebraska Supreme Court

27 Neb. 425

43 N.W. 241

ROBERTS

v.SNOW.

Supreme Court of Nebraska.

Oct. 3, 1889.

Syllabus by the Court.

1. An instrument in writing in the following form, to-wit: “Marshalltown, Ia., July 16, 1877. For value received I hereby promise to pay to Peter Housel, or order, $400, with ten per cent. interest per annum, payable semi-annually in advance, and, on default of prompt payment of the interest for thirty days after it is due, then this note, principal and interest, shall be due and collectible, without defalcation or discount, together with an attorney fee of 10 per cent. for collection,”-- held to be a negotiable promissory note, payable on demand.

2. An indorsee of such a promissory note, where the indorsement was not made for value, nor in the due course of trade, but for the purpose of collection, can maintain an action in his own name for the collection of the note; but in such case the suit would be subject to any defenses the maker may have had as against the indorser of the plaintiff, such defenses not having been cut off by the indorsement.

Error from district court, Holt county; KINKAID, Judge.H. M. Uttley, for plaintiff in error.

M. F. Harrington, for defendant in error.

REESE, C. J.

This action was instituted in the district court of Holt county upon a written instrument, of which the following is a copy:

“MARSHALLTOWN, Iowa, July 16, 1877.

For value received I hereby promise to pay Peter Housel, or order, four hundred dollars, ($400,) with ten per cent. interest per annum, payable semi-annually in advance, and, on default of prompt payment of the interest for thirty days after it is due, then this note, principal and interest, shall be due and collectible, without defalcation or discount, together with an attorney fee of ten per cent. for collection.

+------------------------+
                ¦[Signed]¦B. L. SNOW.    ¦
                +--------+---------------¦
                ¦[Attest]¦C. C. HOUSEL.” ¦
                +------------------------+
                

Upon the back of the instrument are the following indorsements:

+-------------------------------+
                ¦Interest to Jan'y 16, 1878 ¦$20¦
                +---------------------------+---¦
                ¦Interest to July 16, 1878  ¦20 ¦
                +---------------------------+---¦
                ¦Interest to Jan'y 16, 1879 ¦20 ¦
                +---------------------------+---¦
                ¦Interest to July 16, 1880  ¦20 ¦
                +---------------------------+---¦
                ¦Interest to Jan'y 16, 1881 ¦20 ¦
                +---------------------------+---¦
                ¦Interest to July 16, 1881  ¦20 ¦
                +---------------------------+---¦
                ¦Interest to Jan'y 16, 1882 ¦20 ¦
                +---------------------------+---¦
                ¦Interest to July 16, 1882  ¦20 ¦
                +---------------------------+---¦
                ¦Interest to Jan'y 16, 1883 ¦20 ¦
                +---------------------------+---¦
                ¦Interest to Dec. 17, 1883  ¦40 ¦
                +---------------------------+---¦
                ¦Interest to July 1, 1883   ¦20 ¦
                +-------------------------------+
                

“Pay to the order of C. C. Housel. PETER HOUSEL, by C. C. HOUSEL, Executor of the Estate of Peter Housel, Deceased.

Pay to the order of B. F. Roberts. C. C. HOUSEL.”

Two defenses were pleaded in the answer, the second of which was as follows: “This defendant further avers that this instrument is a mere chose in action, and not a promissory note, as alleged by the plaintiff, and that B. F. Roberts, plaintiff herein, is not the owner of said chose in action, and is not the real party in interest in this action; that said Roberts holds said chose in action for collection merely, * * * and defendant is not indebted to him on said instrument.” The reply was, in effect, a general denial. A jury trial was had, which resulted in a verdict as follows: “We, the jury in this case, being duly impaneled and sworn to well and truly try the issues in the above-entitled case, do find for the plaintiff. E. W. GOODRICH, Foreman.” The following special findings were also returned by the jury: “ Question. Who do you find from the evidence to be the real party in interest in this action? C. C. Housel. E. W. GOODRICH, Foreman. (2) Q. What, if any, amount do you find from the evidence to be due and unpaid upon the instrument in suit? We, the jurors, find a verdict for plaintiff in the sum of $400, and interest on the same to date. E. W. GOODRICH, Foreman.” On request of defendant the following special findings were submitted, and answers returned thereto: “(1) Who is the owner of the instrument sued upon in this case? C. C. Housel. E. W. GOODRICH, Foreman. (2) Has plaintiff, B. F. Roberts, ever become the owner of the instrument sued upon herein, by purchase or otherwise? No. E. W. GOODRICH, Foreman. (3) Has plaintiff, B. F. Roberts, any interest in the instrument sued upon in this action other than as an attorney for C. C. Housel? No. E. W. GOODRICH, Foreman,” A motion for a new trial was then filed by plaintiff, and thereafter, as shown by the transcript, the cause was heard upon the motion of plaintiff to be allowed to substitute the name of C. C. Housel for that of plaintiff, B. F. Roberts, which motion the court overruled. From the transcript it appears that the case was then heard upon the motion of defendant for judgment in his favor upon the verdict, although no such motion appears in the record before us. This motion was sustained, and judgment rendered in favor of defendant. We quote from the transcript as follows: “Thereupon this cause came on for hearing upon a motion of plaintiff for new trial of the cause, and for leave to substitute the name of C. C. Housel for that of B. F. Roberts, and the court, after hearing the argument of counsel, and being fully advised in the premises, overrules said motion, to which ruling plaintiff excepts. And the court does find, if at law this court had jurisdiction after trial begun to allow substitution of C. C. Housel for plaintiff Roberts, the court finds as fact that the substitution should have been made.”

The cause is presented by plaintiff by proceedings in error, presenting a large number of assignments, but it is not deemed necessary to examine all. No brief has been filed by defendant in error. It appears that the question underlying the whole controversy in this case is as to the character of the instrument on which the suit was founded. It is insisted by plaintiff in error that the writing is a negotiable promissory note, and is entitled to be treated as such,...