39 Neb. 413 | Neb. | 1894
The defendant in error (plaintiff in the court below) commenced an action before a justice of the peace in Clay county, Nebraska, and recovered a judgment- against plaintiff in error, who appealed the case to the district court, where the plaintiff below filed a petition alleging, first, the corporate character of defendant; second, that about the month of Mayor June, 1889, one James H. Brooks, agent
Defendant company, for its answer, denied each and every allegation of the petition except those expressly admitted; expressly denied the authority of James H. Brooks to promise plaintiff, for the company, a loan to plaintiff by the company, and pleaded that he was expressly forbidden to promise loans to any one, and that plaintiff knew of the limitation of the authority of Brooks as agent for the company. Defendant admitted that it was a,corporation duly organized under the laws of the state of-Minnesota; admitted that on June 24,1889, it issued a certificate to plaintiff for six shares of its stock; admitted that payments of sixty cents per month per share were required to be made until the maturity of the stock or until with
On the issues formed there was a trial to a jury, during which the court, by agreement of parties in open court, instructed the jury orally. The jury returned a verdict for plaintiff in' the sum of $40.87.
Motion for a new trial was filed, argued, submitted, and overruled. The court then made an order that the plaintiff, within ten days of the date of such order, bring into court and place on file the certificate of stock in controversy, for delivery to defendant and cancellation, plaintiff failing to so do, the verdict to be set aside and a new trial ordered. This order was of date May 28,1891. On November 19, 1891, the following entry appears: “It satisfactorily appearing to the court that the defendant has deposited in this court for cancellation the shares of stock as by a former order of court he was required to do, and that said order has been fully complied with, it is considered and adjudged that the plaintiff, Dwight Mordock, have and recover of the defendant, the American Building & Loan Association, the sum of $40.87 and his costs herein, taxed at $47.93.”
The first error of which the plaintiff in error complains is that the court erred in sustaining the objections to certain questions asked of witness B. F. Stoneman, aud excluding the evidence from the jury. The questions and evidence referred to were contained in the deposition of witness Stoneman on pages 3 and 4 thereof. In order to understand the points raised by such assignment of error we will here give the questions and answers:
Q. On receiving applications for loans, what is the usual and customary practice of the association in getting information regarding the property offered by the applicant as security ?
A. We apply for the appraisal from three disinterested parties.
A. It is.
Q. You may state whether or not it is customary practice of the association to permit the withdrawal of stock before all liens or charges against such stock are paid.
A. It is not.
Q,. State whether under the rules, regulations, and bylaws of the association the expense of appraisals secured on plaintiff’s property now are, and at the time of plaintiff’s application for withdrawal were, a subsisting lien and charge against the plaintiff’s stock.
A. Yes.
The first three of these questions called upon the witness to state what was customary with, or what was the usual customary practice of, the company in transacting the business of the loan department, and more particularly in regard to appraisals of the property offered as security, and the expense incurred in making such appraisals, and.in the adjustment with members holding stock, of relations arising from the right of a member to the withdrawal of his stock when liens and charges existed in favor of the company against the stock. These were all governed directly, either by the terms of the contract entered into between the company and plaintiff at the time of the application for a loan, or the rules and by-laws of the association. The rights of the parties to this action could not be determined by “customary practice,” but by their contract and the rules and by-laws of the association. We do not discover any prejudicial error in the ruling of the court sustaining the objection to these three questions.
The fourth and last question called upon the witness to give his conclusions of what was contained in the rules and by-laws of the company on the subject embraced in the question, and is open to the objection made for the reason that it was not the best evidence which could be produced.
The court below sustained an objection to the offer of, by defendant as evidence, what is designated or known in the record as “ printed literature,” and this action on the part of the court is assigned as error. This “ printed literature” is a pamphlet or circular, used mainly, I should judge, as an advertising medium of the association and contains certain of the rules and by-laws of the company and some general information regarding the objects of the company,' its plan and business methods. If competent for any purpose under the issues being tried, it could only be, after proving that the plaintiff had seen it, to establish that he had notice of that portion of it which refers to the expenses of effecting a loan. This, in exactly the same Avoids, is printed upon the back of the application for a loan which plaintiff signed, which was in evidence and not disputed in any particular. We cannot see where the defendant was harmed by the ruling of the court which excluded this “printed literature” from the jury.
Another alleged error of which complaint is made is that the court alloAved the witness H. N. Jones, overruling the objection of defendant, to testify as follows: “ Q. What is the usual and customary price for services of that kind? [Meaning the customary price for appraising property.] A. I never paid anything for having a piece of land appraised for obtaining a loan of money.” This was probably objectionable; but if it was, the court cured any error
The further complaint is made that the court erred in giving certain portions of the instructions given by it on its own motion. No exceptions were taken to these instructions when given in the court below, according to the record, and objections to them will not now be considered here.
The defendant company assigns as error the refusal of the court below to give instructions numbered one, two, three, four, five, six, seven, eight, nine, and ten, as requested by it. We have made a careful and thorough examination of these instructions in connection with the instructions to the jury by the court on its own motion, and in any and all particulars in which the propositions embodied in the instructions refused were applicable to the issues and evidence in the case, — and in the main they were entirely applicable and pertinent, — they were substantially embodied in the instructions given to the jury by the court on its own motion, the only difference being in language, phraseology, and arrangement employed in delivering them. This brings this objection within the well known rule of this court “that it is not error in the court to refuse to give instructions when the same have in substance been already given.” We conclude the court did not err in refusing to give the instructions.
The only assignment of error which we have not noticed is that the verdict is not sustained by the evidence. We have read, examined, and carefully considered all the testimony produced on the trial of this case as contained in the bill of exceptions, and while we do not think that it was altogether satisfactory and convincing, and men might honestly differ in conclusions reached from hearing it and deliberating upon it, yet we do not feel warranted in saying that there was'such a lack of evidence to sustain the verdict arrived at and returned by the jury that the verdict was clearly or manifestly wrong, and hence we will not disturb it.
The instructions given by the court below fairly submitted the issues between the parties to the jury, and there was sufficient evidence to sustain the verdict. The defendant had a fair trial and determination of its case. The judgment of the court below is
Affirmed.