Sackett v. Montgomery

• Decision Date: 19 January 1899
• Docket Number: 8634
• Citation: 77 N.W. 1083,57 Neb. 424
• Parties: F. M. SACKETT v. CARROLL S. MONTGOMERY ET AL., EXECUTORS
• Court: Nebraska Supreme Court

77 N.W. 1083

57 Neb. 424

F. M. SACKETT v. CARROLL S. MONTGOMERY ET AL., EXECUTORS

No. 8634

Supreme Court of Nebraska

January 19, 1899

ERROR from the district court of Boone county. Tried below before KENDALL, J. Affirmed.

AFFIRMED.

Spear & Mack, for plaintiff in error.

James S. Armstrong, H. C. Vail, and Montgomery & Hall, contra.

OPINION

NORVAL, J.

Milton Montgomery sued F. M. Sackett, and obtained judgment against him on a promissory note executed by the defendant and one John Dickenson, and payable to Montgomery & Jaycox, or order. Two defenses were presented, namely, that plaintiff was not the owner of the note, and that the payees had already obtained judgment against both makers for the full amount due thereon. Since the docketing of the cause in this court the death of the plaintiff below was suggested, and by agreement of parties an order was duly entered reviving the action in the name of his executors.

As to the ownership of the note the evidence, without contradiction, shows that at the date of the institution of suit said Milton Montgomery was the owner of the paper, and on his behalf it was produced and introduced in evidence on the trial. The note was payable to the order of the payees but did not contain their indorsement. This fact, however did not prevent an equitable assignment of the paper to the decedent. A note payable to a party or order may be transferred by the payee, without a commercial indorsement by either an oral or a separate, distinct, written assignment thereof, followed by delivery, which would render the transferee liable to any defenses against the original payee. (Doll v. Hollenbeck, 19 Neb. 639, 28 N.W. 286; Colby v. Parker, 34 Neb. 510, 52 N.W. 693; Gaylord v. Nebraska Savings & Exchange Bank, 54 Neb. 104, 74 N.W. 415; Marskey v. Turner, 81 Mich. 62, 45 N.W. 644; Benson v. Abbott, 22 S.E. 127; Thomson-Houston Electric Co. v. Capitol Electric Co., 56 F. 849.)

As to the plea of estoppel by reason of a former judgment, the record discloses the following facts: On June 15, 1894, which was prior to the bringing of this action Montgomery & Jaycox caused to be docketed a suit on the note in question against both makers before H. C. Vail, as a justice of the peace of Boone county. Summons was issued returnable on June 20. The day preceding the time fixed for the return of the writ John Dickenson, one of the makers of the note, appeared before the justice,...