W. S. Bloom & Co. v. Warder, Mitchell & Co.

• Decision Date: 08 December 1882
• Citation: 14 N.W. 395,13 Neb. 476
• Parties: W. S. BLOOM & CO., PLAINTIFFS IN ERROR, v. WARDER, MITCHELL & CO., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

14 N.W. 395

13 Neb. 476

W. S. BLOOM & CO., PLAINTIFFS IN ERROR, v. WARDER, MITCHELL & CO., DEFENDANTS IN ERROR

Supreme Court of Nebraska

December 8, 1882

ERROR to the district court for Nuckolls county. Tried below before WEAVER, J.

AFFIRMED.

D. W Barker, for plaintiffs in error, claimed that evidence showed that on a day mentioned the parties had made a complete and final settlement of all accounts, indorsements, &c including liability of plaintiffs in error as indorsers of notes sued on; hence one who accepts with knowledge of all the facts the avails of a compromise made on his behalf, even without authority, thereby ratifies the settlement; and ratification in that manner of a part of the unauthorized transaction is a ratification of the whole. Winpenny v French, 18 Ohio St. 469. The settlement was made by Witt, as agent, and defendants in error are bound by his acts. Swan's Treatise, 338. Story Agency, 135.

H. W. Short, for defendants in error.

OPINION

COBB, J.

There are but two questions presented by the record in this case: 1. Is the defendant below still bound by his guaranty of the payment of the notes? 2. Are the findings and judgment of the district court sustained by the evidence? Answering the second question first, there is a clear conflict between the testimony of the plaintiff in error on his own behalf, and his witness, Adams, on the one part, and the several witnesses whose depositions were read on the other part. There is some evidence in support of the plaintiff's theory of the case as to each material point; and indeed, taking into consideration the undisputed facts as to the amount of the open account between the parties, the amount of money paid by the defendant, and the circumstances connected with the guaranteed notes, we think the preponderance of testimony is with the view taken by the district court, and it would have to be overwhelmingly against it to justify this court in reversing the judgment on that ground.

As to the first question, we think there can be no doubt the notes sued on were all drawn payable to the order of the plaintiffs, Warder, Mitchell & Co., and were endorsed as follows: "For value received we guarantee the payment of the within note, and hereby waive protest, demand and notice of non-payment thereof. W. S. Bloom & Co."

This is an absolute contract for a lawful consideration, that the money expressed in the note shall be paid at the...