Wright v. Carson Water Co.

• Decision Date: 28 March 1895
• Docket Number: 1,420.
• Citation: 39 P. 872,22 Nev. 304
• Parties: WRIGHT et al. v. CARSON WATER CO.
• Court: Nevada Supreme Court

39 P. 872

22 Nev. 304

WRIGHT et al. v. CARSON WATER CO.

No. 1,420.

Supreme Court of Nevada

March 28, 1895

Appeal from district court, Ormsby county; Richard Rising, Judge.

Action by S. C. Wright against the Carson Water Company. On plaintiff's death, F. J, Edwards and another, executors were substituted as plaintiffs. From a judgment for defendant, John M. Wright and another, as heirs at law and distributes of decedent, appeal. Affirmed.

For prior appeal, see 34 P. 381.

Rives & Judge and Wm. Woodburn, for appellants.

Torreyson & Summerfield, for respondent.

BONNIFIELD J.

The original plaintiff, S. C. Wright, brought this action in the district court in and for Ormsby county against the Carson Water Company, a corporation, defendant, on a certain promissory note of date December 8, 1886, for the sum of $2,000, and interest, alleged in the complaint to be the note of said defendant, executed by its president and secretary. The complaint contains the usual and necessary allegations in such action. The answer of the defendant, as to the note, is confined to specific denials of the averments of the complaint. In March, 1892, the case was tried before the court sitting without a jury, and the plaintiff recovered a judgment for the amount of his note, less the sum of a counterclaim set up in the defendant's answer for water rent. The district court granted the defendant a new trial. Mr. Wright having died, his executors were substituted as plaintiffs, and they appealed to the supreme court from the order granting a new trial. This order of the district court was affirmed by this court. 34 P. 381. The cause came on regularly for second trial in the court below at its session in January, 1894, before a jury. After making such preliminary proofs as they had, the plaintiffs offered the note in evidence; to which the defendant objected on various grounds, among which are the following, to wit: "It is denied that this is the note of the Carson Water Company. There has been no evidence in this case, in fact, differing from the testimony or varying the testimony that was introduced in the former trial. The supreme court of this state decided that this note is not the note of the corporation, and that its officers who signed it had no authority to execute the corporate note, or bind said corporation." The objections of the defendant were sustained, the note was excluded, and judgment given against the plaintiffs for defendant's costs, taxed at $210. The plaintiffs duly excepted to the rulings of the court. The appellants, J. M. Wright and S. C. Wright, the heirs at law of S. C. Wright, deceased, and the distributees of this estate, being this appeal from the order of the court excluding said note, and from the judgment rendered against the plaintiffs for costs. The appellants urge several assignments of error, but from the view we feel compelled to take of the case it is not material for this court to pass upon any except the second, which goes to the vitals of the case, and is as follows, to wit: "The court erred in refusing to admit in evidence the promissory note for $2,000 sued upon and set out in the complaint, as being invalid, and as having been given for an outlawed note for the same amount by the president and secretary of the company, for the reason that no such defense is set out or pleaded in defendant's answer, the testimony showing, also, that the members of the board of trustees of the defendant had knowledge of the manner and purpose in and for which said note was given; that interest had been paid thereon, monthly, for more than two years after the note sued on had been given; the testimony further showing that it was the custom of the company to transact...