Rublee v. Davis

• Decision Date: 20 January 1892
• Citation: 51 N.W. 135,33 Neb. 779
• Parties: RUBLEE v. DAVIS ET AL.
• Court: Nebraska Supreme Court

33 Neb. 779

51 N.W. 135

RUBLEE

v.DAVIS ET AL.

Supreme Court of Nebraska.

Jan. 20, 1892.

Syllabus by the Court.

The consideration for which a negotiable promissory note was given was a jack, warranted by the seller to be a sure foal-getter. In an action upon the note by an indorsee, who purchased the paper before due, in the ordinary course of business, for value, having knowledge of the contract of warranty, but neither he nor the makers of the note having any knowledge that the warranty had failed until long after the transfer of the paper, held, that the defense of breach of warranty was not available against the plaintiff.

Error to district court, Valley county; TIFFANY, Judge.

Suit by F. M. Rublee against Henry S. Davis, A. Frances Davis, and J. F. Coleman to recover on certain notes. Judgment for defendants. Plaintiff brings error. Reversed.E. J. Clements and C. A. Munn, for plaintiff in error.

E. J. Babcock and H. E. Babcock, for defendants in error.

NORVAL, J.

This suit was brought in the county court of Valley county by the plaintiff in error to recover the amount of two promissory notes dated May 4, 1885, due 13 months after date, one for $200, and the other for $150, payable to J. F. Coleman or order, and executed by the defendants. The petition is in the usual form where an action is brought by an indorsee of a promissory note against a maker. The answer sets up that the notes were give as part consideration for a jack purchased by the makers of the payee; that the animal was warranted to be a sure foal-getter; and the defendants aver that the warranty has failed, and that the plaintiff purchased the notes with notice of and subject to the equities of the makers. The reply denies every allegation of the answer. The cause was tried in the county court without a jury, and a judgment was rendered in favor of the defendants. At the request of the plaintiff, the county court made special findings of facts, which are set out in full in the transcript. The plaintiff prosecuted a petition in error to the district court, where the judgment of the county court was affirmed, and the plaintiff brings the cause here for review on error. The sole question to be decided is this: Is the judgment of the county court sustained by the findings of fact? The facts found by the county court are as follows: (1) That the notes set forth in plaintiff's petition were given by the defendants H. C. Davis and A. Frances Davis at the time and in the manner set forth in said petition, and were secured by a chattel mortgage on a jack. (2) That said notes were given for the purchase price of a certain jack, and as part consideration for the giving of said notes was the warranting of said jack to be a sure foal-getter by said Coleman. (3) That a bill of sale of said jack, containing a warranty that he was a sure foal-getter, was given by said J. F. Coleman to Henry S. Davis and A. Frances Davis, which bill of sale was recorded in the county clerk's office of Valley county on the 5th day of May, 1885. (4) That said notes were purchased of said J. F. Coleman by plaintiff, without fraud on his part, on or about the 1st day of June, 1885, in the ordinary course of his business, and the plaintiff paid therefor the sum of $200, being the reasonable and fair value of said notes at that time, and that said notes were indorsed by said Coleman. (5) That before plaintiff purchased said notes he knew that they were given in payment of the purchase of a certain jack, and was told by witness Johnson that the value of said jack depended wholly on his being a sure foal-getter, in answer to an inquiry of plaintiff as to the security on said notes. (6) That before plaintiff purchased said notes he was told by the defendant H. S. Davis that he would give no further security on said notes unless he knew whether the jack was as represented and guarantied by Coleman. (7) That the plaintiff had no actual notice of the bill of sale, and the warranty therein contained, which were recorded as aforesaid, and no actual knowledge of any of the facts, save in the conversation had with the witness Johnson and defendant H. S. Davis. (8) That said jack was brought into Valley county from Missouri a short time before Coleman sold him to the Davises, and that neither H. S. Davis, A. Frances...