34 Neb. 597 | Neb. | 1892
In July, 1887, A. S. Harrington and R. B. Harrington borrowed a sum of money of the plainliff and executed a note as follows:
“$2,200. ' Beatrice, July 20, 1887.
“ Three months after date, we, or either of us, promise to °pay to American Savings Bank, Beatrice, Nebraska, or order, twenty-two hundred & dollars, for value received, negotiable and payable at the American Savings Bank, Beatrice, Nebraska, with interest at the rate of ten per cent per annum from maturity until paid.
“Due 10-23. ■ A. S. Harrington.
“No. 331. R. B. Harrington,”
The note was not paid when it became due, although payments were made thereon. In August or September, 1889, R. B. Harrington died, and the note, less the payments, was filed as a claim against his estate. The claim was rejected by the county judge, and on appeal to the'district court the judgment was affirmed. In the district court the plaintiff in error introduced the note in evidence and rested, whereupon the defendant called A. S. Harring
“Objected to, as immaterial, irrelevant, incompetent; mot the best evidence, and not proper cross-examination. ¡Sustained. Exception noted.
“ Plaintiff offers to prove by this witness that at the time the note sued upon was given it was agreed between the plaintiff (The American Savings Bank) and the witness and R. B. Harrington, now deceased, that the note was not to be paid at the time it matured but was to be extended from time to time as the witness now on the stand asked to have it extended.
“ Objected to, as-immaterial, irrelevant, incompetent, and mot proper cross examination, and as improper for the reason that R. B. Harrington is now deceased and this is a olaim against his estate and the witness has an interest in -the result of this suit. Sustained.”
Section 329 of the Code provides that “ No person having any direct legal interest in the result of any civil action ■or proceedings, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness, unless the evidence of the deceased person shall have been taken and read in evidence by the adverse party in regard to such transaction or conversation, or unless such representative shall have introduced a wit-mess who shall have testified in regard to such transaction or «conversation; in which case the person having such direct
Reversed and remanded.