Schroder v. Neilson

• Decision Date: 08 February 1894
• Citation: 39 Neb. 335,57 N.W. 993
• Parties: SCHRODER v. NEILSON.
• Court: Nebraska Supreme Court

39 Neb. 335

57 N.W. 993

SCHRODER

v.NEILSON.

Supreme Court of Nebraska.

Feb. 8, 1894.

Syllabus by the Court.

1. A promissory note, given for the privilege of using or selling an article which all men are equally at liberty to lawfully use and sell, lacks consideration to support it.

2. In a suit against the maker of a promissory note by an alleged indorsee thereof as such, the defendant's answer denied plaintiff's ownership. Held, to entitle plaintiff to recover, he must establish by competent evidence that the indorsement on the note was that of the payee.

3. Where the terms of an agreement were intended in a different sense by the parties thereto, in a suit between the parties on such agreement the court will construe the agreement as understood by one party when the evidence shows that the other was aware of such first party's understanding of the agreement, and that such understanding induced him to execute it.

Error to district court, Douglas county; Estelle, Judge.

Action on promissory note by Fred Schroder against David H. Neilson. There was judgment for defendant, and plaintiff brings error. Affirmed.W. S. Felker and H. B. Holsman, for plaintiff in error.

G. E. Bertrand, for defendant in error.

RAGAN, C.

Fred Schroder sued David H. Nielson in the district court of Douglas county on a promissory note given by the latter to one Ingolsbe & Co., and by them assigned to Schroder. The case was tried to the court, a jury being waived, and Nielson had a judgment, and Schroder brings the case here on error. The trial court specifically found that the note was given without consideration, and that Schroder purchased it with knowledge of that fact. The evidence fully supports the findings of the court. Counsel for plaintiff in error cite us to numerous authorities,--among others, Moses v. Comstock, 4 Neb. 516; Nash v. Lull, 102 Mass. 60,--to show that a note given for a patent right or license to use or vend a patented invention is supported by good consideration; but these authorities are not in point here. There is nothing in this record showing or tending to show that the note in suit was given for a patent right, or for a license to use or vend one. To put it mildly, this note was procured by false pretenses. As it may be useful in practice, we quote the “article of agreement” executed between the original parties to this note at the time it was given: “Article of agreement, made and entered into this 15th day of December, A. D. 1887, by and between Ingolsbe and Company, of Chicago, state of Illinois, parties of the first part, and D. Nielson, of Union, of the county of Douglas, state of Nebraska, party of the second part, witnesseth: That said parties of the first part, as legal owners of an improved machine to manufacture the Combination slat and wire fence, and desiring to establish a permanent industry in Douglas county for the purpose of manufacturing and selling said fence, do hereby make and constitute the party of the second part a lawful agent, with power to contract, build, or sell the manufactured fence in the township of Union, county of Douglas, state of Nebraska. The manufactured fence to be kept in stock by the manufacturing agent, Veny Kelsey, at Millard, county of Douglas, state of Nebraska, and at all times to be furnished to the second party at wholesale prices: 35/40 cents per rod for two-foot or hog fence, 50 cents per rod six-wire fence, 60 cents per rod for eight-wire fence, and 65 cents per rod...