Stabler v. Gund

• Decision Date: 10 November 1892
• Citation: 35 Neb. 648,53 N.W. 570
• Parties: STABLER ET AL. v. GUND ET AL.
• Court: Nebraska Supreme Court

35 Neb. 648

53 N.W. 570

STABLER ET AL.

v.GUND ET AL.

Supreme Court of Nebraska.

Nov. 10, 1892.

Syllabus by the Court.

1. When a cause brought to this court upon appeal or petition in error is submitted upon the record and bill of exceptions, without either a brief or oral argument, the judgment, ordinarily, will be affirmed without an investigation of the questions presented.

2. In an action by a payee against the acceptor of a conditional order for the payment of money, the plaintiff must aver and prove that the conditions stipulated in the order have been fulfilled, in order to entitle him to recover.

3. The admission of illegal evidence in a cause tried to a court without a jury is not sufficient ground for the reversal of the judgment.

Error to district court, Phelps county; GASLIN, Judge.

Action by Stabler and others against Gund and others on an acceptance of a conditional order for the payment of money. Findings and judgment for defendants. Plaintiffs bring error. Affirmed.Hall & Patrick, for plaintiffs in error.

Case & McNeny, for defendants in error.

NORVAL, J.

Plaintiffs in error were engaged in business under the name of the Nebraska Manufacturing Company, and defendants in error were engaged in the banking business under the name and style of the Webster County Bank. On the 15th day of December, 1884, the firm of Schunk & Mouser, composed of J. Schunck and L. D. Mouser, was indebted to plaintiffs in error, for goods, wares, and merchandise sold and delivered, to the amount of several hundred dollars, a part of which indebtedness was evidenced by four promissory notes, and the balance was on book accounts. For the purpose of securing the payment of such indebtedness, Schunk & Mouser executed and delivered to plaintiffs the following order: “Blue Hills, Nebr., Dec. 15, 1884. Webster County Bank, Blue Hills, Neb. Please pay to the Nebraska Manufacturing Co., of Lincoln, Nebraska, the amount we owe them, consisting of the following notes and book account, out of the first collaterals you hold belonging to us, after the amount we owe you is paid; [here follows a description of the four notes and the account;] amounting in all, with interest, to about $598. SCHUNK & MOUSER. J. SCHUNK. L. D. MOUSER. Witness: E. L. MORSE.” Upon the face of said order is written the following acceptance: “December 15, 1884. Accepted. WEBSTER COUNTY BANK. E. L. MORSE, Asst. Cashier.” Action was brought in the court below upon said acceptance, the plaintiffs alleging that at the time of the giving of said order, and the acceptance thereof, defendants had in their possession and under their control a large number of notes, accounts, and securities belonging to the firm of Schunk & Mouser, which were held by the bank as collateral security for money due from said firm to the defendants; that said indebtedness to said bank has since been paid; and that defendants have in their possession a large amount of notes, accounts, and securities belonging to said Schunk & Mouser over and above the indebtedness of said firm to the bank. The prayer is for judgment for $498 and interest. The answer to the petition is, in effect, a general denial. There was a trial to the court, with finding and judgment for defendants. The cause is submitted to ...