Securities Acceptance Corp. v. Blake

• Decision Date: 08 January 1954
• Docket Number: No. 33430,33430
• Citation: 157 Neb. 848,62 N.W.2d 132
• Parties: SECURITIES ACCEPTANCE CORP. v. BLAKE.
• Court: Nebraska Supreme Court

Page 132

62 N.W.2d 132

157 Neb. 848

SECURITIES ACCEPTANCE CORP. v. BLAKE.

No. 33430.

Supreme Court of Nebraska.

Jan. 8, 1954.

Syllabus by the Court.

1. A motion to instruct a verdict admits the truth of all material and relevant evidence, and the party against whom the motion was made is entitled to have it considered in the light most favorable to him and to have the benefit of all inferences reasonably deducible therefrom in testing the correctness of the action of the court in granting the motion.

2. The endorsement of a promissory note by the use of the words, for value received pay to the order of a named endorsee, demand, presentment for payment, protest, notice of protest and nonpayment waived, payment guaranteed, obligates the endorser to pay the amount of the note to the holder or any subsequent endorser who mayd be compelled to pay it.

3. When a written contract has been unconditionally delivered in the sense that it is intended to take effect as a legal obligation, a contemporaneous oral agreement, providing that the contract is not to be performed if a certain condition or contingency occurs, cannot be shown, as such testimony would have the effect of adding to, varying, or contradicting the express terms contained in the writing.

4. In the absence of fraud, mistake, or ambiguity a written agreement is not only the best evidence but the only competent evidence as to what was the contract of the parties.

5. It is a general rule that fraud must relate to a present or preexisting fact, and cannot ordinarily be predicated on an unfulfilled promise or a statement as to a future event.

Firmin Q. Feltz, Ogallala, for appellant.

Maupin & Dent, North Platte, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This is an appeal from the decision of the district court that as a matter of law appellee was entitled to have judgment against appellant for the amount due on a promissory note in which he was named as payee, and which was by him endorsed with recourse and sold and delivered to appellee. The jury was, on motion of appellee, discharged and a judgment was rendered in its favor and against appellant.

The claim of appellee was that on or about July 14, 1949, Russell Johnson for a consideration executed and delivered to appellant a promissory note for $1,180.44 payable in monthly installments of $65.58 beginning August 20, 1949; that appellant endorsed the note with recourse, guaranteed its payment, and for a consideration sold and delivered it and the security for its payment to appellee; that only three monthly installments had been paid; and that appellee was entitled to judgment for the unpaid balance of the note with interest as therein provided.

Appellant admits that he had taken and owned the Johnson note and the mortgage securing its payment; that he endorsed the note with recourse and guaranteed its payment; that on July 14, 1949, he sold and delivered the note and mortgage for a consideration to appellee; that he received and has since retained the consideration paid him on that account; that the maker of the note paid only three monthly installments on the indebtedness; and that all installments that matured commencing with November 20, 1949, were unpaid. Appellant claims, and over objection was permitted to offer evidence to establish, that Johnson, an itinerant gypsy carnival worker with the Bohn Shows then exhibiting in Ogallala, had been negotiating with appellant upon a time payment plan for the purchase of a used 1947 trailer house for a price of $1,750; that appellant had previously sold notes to appellee; that appellant refused the offer of Johnson until he had contacted and talked with appellee; that appellant discussed the matter with the agent and manager of the office of appellee at North Platte; that he said appellee would purchase a note and mortgage of Johnson if appellant made a deal with him but appellant would have to endorse the note with recourse; that appellee would, in the event that Johnson defaulted in his payments as required by the note, return the trailer house to the used car lot of appellant in Ogallala before he would be required to pay appellee the note; that thereafter appellant sold the trailer house to Johnson, received $852.28 of the purchase price, took the note involved in this case for the balance of the purchase price, the finance charges, and cost of insurance, procured a chattel mortgage securing the note, endorsed it, and sent it and the security for its payment to appellee and received from it a remittance for the amount due appellant as the net proceeds from the purchase of the note; that there has been no communication from Johnson since he made the October 1949 payment on the note, and search for him has been without result; that the trailer house has not been returned to the used car lot of appellant; and that the representation in this regard of appellee 'was false, and the plaintiff knew it was false, or made it without knowledge as a positive statement of a known fact.'

The note, the written endorsement, and the guarantee of payment of it made and signed by appellant were received in evidence. The testimony offered by appellant concerning the conversation between him and the agent and manager of appellee in North Platte is not contradicted. The manner of considering the evidence of the party against whom a verdict has been directed or the jury has been discharged and a judgment rendered by the...