Suiter v. Park Nat. Bank of Chi.

• Decision Date: 11 October 1892
• Citation: 35 Neb. 372,53 N.W. 205
• Parties: SUITER v. PARK NAT. BANK OF CHICAGO.
• Court: Nebraska Supreme Court

35 Neb. 372

53 N.W. 205

SUITER

v.PARK NAT. BANK OF CHICAGO.

Supreme Court of Nebraska.

Oct. 11, 1892.

Syllabus by the Court.

1. When, in an action on a note on the issue made by the pleadings, the plaintiff would be required to prove any fact to entitle him to recover, he has the right to open and close. If, however, the defendant in his answer admits the plaintiff's cause of action, but sets up new matter, such as usury, for a defense, so that the defense would fail without proof of such new matter, the defendant is entitled to open and close.

2. Where, from the testimony before the jury, different minds might draw different conclusions, it is error to direct a verdict.

3. When usury is clearly established in the transaction, the burden of proof is on the person holding the instrument to show that he is a bona fide holder for value, before maturity.

Error to district court, Saline county; MORRIS, Judge.

Action by the Park National Bank of Chicago, Ill., against Joseph Suiter on a promissory note. Judgment for plaintiff. Defendant brings error. Reversed.L. W. Colby and Pemberton & Bush, for plaintiff in error.

F. I. Foss and Hastings & McGintie, for defendant in error.

MAXWELL, C. J.

This action was brought in the court below upon a promissory note, as follows: “$4,309.38. De Witt, Neb., Jan'y 10th, 1889. On the 10th day of June, 1889, after date, for value received, I promise to pay to the order of Fayette I. Foss, of Crete, Neb., four thousand three hundred nine and 38-100 dollars, with interest at the rate of 10% per annum from maturity until paid. Negotiable, and payable at the De Witt Bank, at De Witt. Neb. No. 1,377. Due 6-10, '89. JOSEPH SUITER.” Said note was indorsed as follows: “For value received, I hereby waive notice of protest and nonpayment, and guaranty payment of the within note. FAYETTE I. FOSS. 6-25, Cr. on the within note: Cr. on $1,790.14; Cr. on $1.40.” The note was afterwards indorsed by the cashier of the De Witt Bank, and delivered to the defendant in error. It is admitted that $1,790 and $1.40 have been paid on the note. Suiter, in his answer, which is very long, admits the making of the note, but alleges, in substance, that the note in question is the culmination of a long series of usurious transactions, which are set out at length, and that the plaintiff below is not a bona fide purchaser and holder of the note. On the trial of the cause the court directed a verdict for the plaintiff below, and the jury returned a verdict in its favor for $2,610.68, and, a motion for a new trial having been overruled, judgment was entered on the verdict.

The first objection of the plaintiff in error is that he was denied the right to open and close on the trial, and was thereby prejudiced. If the testimony in the case justified the court in directing the jury to find a verdict for the plaintiff below, there would be no error in having denied the defendant below the right to open and close; but, as will presently be stated, the court erred in directing a verdict. Therefore, if the defendant below admitted the cause of action of the plaintiff below, so that he had nothing to prove, except for the new matter, to entitle him to recover, then the defendant was entitled to the opening and closing. An examination of the answer shows that the defendant below admitted the making and delivery of the note, and all the...