114 Neb. 420 | Neb. | 1926
This is an action by the payee against the makers of three promissory notes to recover the amount due thereon. Judgment by default was entered against defendant Petersen. The other defendant, Markmann, filed an answer in which he admitted the signing and delivery of the notes, but alleged as a defense that he signed them as an accommodation to the plaintiff and without consideration, and upon the understanding and agreement that his name was appended to the notes so that plaintiff could exhibit the notes with his signature to the state bank examiner, and that' Markmann was not to be called upon to pay the notes and was to incur no liability by signing them. Plaintiff’s reply was a general denial. A jury trial of the issues resulted in a verdict and a judgment thereon for defendant. Plaintiff appeals.
Plaintiff complains of the action of the trial court in permitting defendant to open and close the argument to the jury. Section 8790, Comp. St. 1922, inter alia, provides that the party who would suffer defeat, if no evidence were given, must first give his evidence, and that the party required to first produce his evidence- shall open and conclude the argument to the jury. Defendant having, by his pleading, admitted the signing and delivery of the notes would, if no evidence had been adduced, suffer defeat. He was therefore first called upon to introduce evidence and was entitled to open and conclude the argument to the jury.
Plaintiff contends that, under the rule that the terms of a written contract cannot be contradicted, altered, or varied by evidence of a prior or contemporaneous oral agreement, defendant is precluded from establishing the defense ten
Plaintiff complains of the remarks of the trial judge in the presence of the jury as to the weight of certain evidence admitted. During the progress of the trial the court, in the presence of the jury, remarked that he would receive certain evidence for what it was worth. The judge did not indicate that he thought the evidence was worth much or little. While it might have been better to have omitted such a remark, we .think that it was not prejudicial to plaintiff’s cause.
There are other rulings on the admission and exclusion of evidence which are complained of, and complaint is made of the giving and refusal of certain instructions. We have examined all of these assignments and find no error therein.
Affirmed.