Walker v. Hagerty

• Decision Date: 02 July 1890
• Parties: WALKER v. HAGERTY.
• Court: Nebraska Supreme Court

30 Neb. 120

46 N.W. 221

WALKER

v.HAGERTY.

Supreme Court of Nebraska.

July 2, 1890.

Syllabus by the Court.

1. While parol testimony may not be received to contradict or vary the terms of a promissory note, yet the consideration for which it was given may be established by parol testimony.

2. Objections to the giving of instructions will not be considered by the supreme court unless assigned in the motion for a new trial.

3. It is error to give an instruction not warranted by the pleadings and evidence.

4. The jury was instructed “that, if any witness has willfully testified falsely as to any material fact in the case, you are at liberty to disregard the entire testimony of such witness, unless his testimony be corroborated by other evidence.” Held correct as an abstract proposition of law, and that it was justified by the evidence.

Error to district court, Cuming county; NORRIS, Judge.Thomas O'Day and Lancaster, Hall & Pike, for plaintiff in error.

Hall & McCulloch, for defendant in error.

NORVAL, J.

This suit is upon a promissory note for $5,800, with 10 per cent. interest, bearing date May 15, 1883, given by the defendant to A. N. Schuster & Co., and by them indorsed after maturity to the plaintiff. The defendant has made the following payments upon the note: June 23, 1883, $500; July 12, 1883, $800; September 1, 1883, $500; October 16, 1883, $500; May 31, 1884, $400; June 21, 1884, $25,--making a total of $2,725. The answer admits the execution of the note, the making of the above payments, and pleads that the note was given to close up an unsettled account between the defendant and A. N. Schuster & Co.; that, at the time the note was given, the payees promised to forward to the defendant goods to the full amount of the difference in the account, amounting to the sum of $3,075, which the payees have wholly failed and refused to do, and that said note was given for no other or greater consideration than the sum of $2,725, which sum has been fully paid to the said A. N. Schuster & Co. The answer alleged that the plaintiff received the note after maturity. The reply was a general denial. A jury was impaneled to try the cause, who, after hearing the evidence, the argument of counsel, and instructions of the court, returned a verdict for the defendant, whereupon the plaintiff presented a motion for a new trial, which was overruled, and a judgment was rendered for the defendant. The plaintiff brings the case here for review, assigning the following errors: “(1) The court erred in allowing any evidence on the part of the defendant to be introduced at the trial of this cause, because the answer fails to state facts sufficient to constitute a defense; (2) the court erred in allowing the defendant, over the objection of the plaintiff, to introduce parol evidence to contradict or change the terms of the note; (3) the court erred in giving paragraph sixth of the instructions given by the court on its own motion; (4) the court erred in giving paragraphs 3, 4, 5, and 6 of the instructions asked by the defendant; (5) the verdict is not sustained by sufficient evidence; (6) the court erred in overruling the motion of plaintiff for a new trial.”

Prior to the examination of the witness for the defense, the plaintiff objected to the introduction of any testimony on the part of the defendant, for the alleged reason that the answer fails to state a defense. While the answer does not contain a full statement of the facts, yet sufficient facts are pleaded to constitute a defense against the note. The answer charges that the only consideration the defendant ever received for the note was the sum of $2,725, and which amount, it alleges, has since been fully paid. For the balance of the amount expressed on the face of the note, to-wit, $3,075, it is averred that A. N. Schuster & Co. agreed to send to the defendant goods for that amount, and that they had failed and neglected to do so. If the allegations of the answer are true, it is clear that there is not due the plaintiff the amount claimed in his petition The testimony of the defendant tends to show that he was engaged in the mercantile business, and had from time to time purchased on credit, from the payees of the note, goods to the amount of several thousand dollars. This note was given in settlement of the account. The defendant further testified that when the note was executed he claimed a credit on the account, for $2,900 or $3,000, for goods that had been sent contrary to orders, and that were unsalable, and that the agent of A. N. Schuster & Co. at the time agreed to credit the note for the amount claimed. The plaintiff objected to the receiving of this testimony on the ground that it contradicted the terms of the note. The testimony was not offered for that purpose, nor did it have that effect. The object of this testimony was to show the real consideration for the note sued upon. If the defendant was entitled to a credit upon the account for the amount claimed by him, then he was not indebted to the plaintiff in the sum of $5,800, and the note did not truly express the amount of the defendant's indebtedness to the payee. While parol testimony cannot be received to contradict the terms of the note, it was clearly admissible to show the true consideration for which it was given.

Charles M. Edwards testified that he was the person who took the note from the defendant; that at that time there was a balance of $5,879.75 due from defendant to A. N. Schuster & Co. on an account for goods sold and delivered; that the defendant made no claim, at the time the note was given, for any damages, or that the goods had not been received, but on the contrary admitted the goods had been...