State Sav. Bank of St. Joseph v. Scott
| Decision Date | 23 January 1880 |
| Citation | 4 N.W. 314,10 Neb. 83 |
| Parties | THE STATE SAVINGS BANK OF ST. JOSEPH, MO., PLAINTIFF IN ERROR, v. WINCHESTER D. SCOTT AND OTHERS, DEFENDANTS IN ERROR. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from the district court for Nemaha county.
T. L. Schick, for plaintiff in error.
W. T. Rogers, for defendants in error.
The defendants executed and delivered to C. L. Keim & Co. a promissory note of which the following is a copy:
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¦“$426.70.¦FALLS CITY, NEB., July 7, 1877.¦
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Ninety days after date we or either of us promise to pay C. L. Keim & Co., or order, four hundred and twenty-six 70-100, for value received, negotiable, and payable without defalcation or discount, and interest from date until paid at the rate of twelve per cent., and ten per cent. attorney's fees if collected by suit. Payable at the Falls City Bank, Falls City, Nebraska.
W. D. SCOTT,
S. A. SCOTT.”
The note was transferred before due, for a valuable consideration, to the plaintiff, without notice of any defence. In 1879 the plaintiff instituted an action on the note in question against the defendants, in the district court of Nemaha county. The defendants answered plaintiff's petition, alleging-- First, that the note was obtained for an usurious consideration; and, second, that S. A. Scott was the wife of W. D. Scott. On the trial of the cause the court found for the defendants, and a motion for a new trial having been overruled, dismissed the action. The plaintiff brings the cause into this court by petition in error.
The first question presented by the answer has already been passed upon by this court in the case of Wortendyke v. Mehan et al. 9 Neb. 221. Here it is clearly shown that during the month of July, 1877, the plaintiff purchased the note in question, properly indorsed, of C. L. Keim & Co., for the face of said note, less 10 per cent. interest for the immature time, and that the plaintiff had no knowledge that said note was usurious. Such being the case, the plaintiff comes clearly within the rule laid down in Wortendyke, 9 Neb. 221, and may recover thereon. The court found that S. A. Scott signed the note in question as surety for her husband, and was not liable thereon. This is assigned for error. In the case of Davis v. First Nat. Bank of Cheyenne, 5 Neb. 247, this court uses the following language: ...
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