66 Neb. 56 | Neb. | 1902
No objections on this rehearing are made to the statement of the pleadings in the former opinion filed in this court December 4, 1901. 63 Nebr., 215. The only addi
We entirely concur with the former opinion in finding that the question of suretyship was given' quite undue prominence. The trial court told the jury, in substance, that alterations would relieve Beaumont, if they found he was a surety, and that plaintiff was aware of it; otherwise not. This instruction was excepted to by plaintiff. There is no evidence in the record tending in any way to show knowledge on plaintiff’s part that Beaumont was merely a surety. The verdict, therefore, is clearly contrary to this instruction.
The fifth error mentioned in the motion for a new trial,' as well as in the petition in error, is that the verdict is contrary to the instructions of the court. As above stated, this verdict is upon conflicting evidence as fo the relations in this transaction of the two makers to each other and to the note. It was the jury’s duty to follow the court’s instructions, though we think them wrong in making knowledge of defendant’s suretyship on plaintiff’s part necessary to give effect to alterations. The alterations would be just as effectual to do away with the note itself against Beaumont as principal as they would as surety. We are of the opinion that under the instructions as they stand, there was no defense to the note. We are unable to say, as a matter of law, .that this verdict for defendant is the only one possible under, the evidence, and that therefore the failure to follow instructions, was- not prejudicial.
It is therefore recommended that the judgment of reversal be adhered to.
By the Court: For the reasons stated in the foregoing opinion, the judgment of reversal with directions heretofore entered herein is adhered to.
REVERSAL ADHERED TO.