89 Neb. 590 | Neb. | 1911
The petition alleges that on and long prior to September 26, 1906, plaintiff had an opén account with the defendant bank as a depositor; that on that date one James McMillan drew the following draft: “Grand Junction, Colo., 9-26 1906. Tom Bradstreet: Pay to the order of Grand Valley Nat. Bank $330.00-100, three hundred thirty dollars, value received and charged to account of J. A. McMillan. To Grand Island Banking Go., Grand Island, Neb;” that plaintiff never authorized McMillan to make the draft; that said draft came into the possession of defendant some time between September 26 and October 2, 1906, the exact date being unknown to plaintiff; that defendant claims to have paid said draft on October 2, but whether cashed or paid by defendant plaintiff has no knowledge; that defendant wrongfully, illegally and without any authority whatever charged the amount of said draft to the account of plaintiff; that before the time when defendant claims to have paid the draft, and on or about September 28, plaintiff verbally notified the bank not to pay the same; that plaintiff did not accept said draft or agree to pay the same, or at any time authorize same to be paid out of his deposits or charged to his account; that plaintiff did not discover that the amount of the draft had been charged to his account until on or about November 3, 1906, when it was returned to him as a voucher with checks which had been charged to him by defendant, and that immediately upon the discovery thereof he demanded of defendant that it correct said account, and has repeatedly demanded of defendant the sum charged against his account, which demand has been refused; that the account between plaintiff and defendant has been fully settled, except said sum of $330, which defendant still holds, and that it is therefore now indebted to plaintiff in said sum; that on July 5, 1907, he drew a check upon defendant for the amount of the draft, and payment thereof was refused.
The answer admits the dealings between the parties as
As a second ground of defense, it is alleged that McMillan was in the employ of and purchased horses for plaintiff in the west during the summer of 1906; that the draft in question was drawn by McMillan to pay for 19 particular horses which plaintiff received; that plaintiff also recovered $200 from the Union Pacific Railway Company as damages for the negligent handling of said horses in course of shipment, and in said action claimed that he was the owner of such horses; by reason of all which defendant claims that plaintiff is estopped to deny the authority of McMillan to draw the draft or to repudiate the authority of defendant to pay the same.
As a third defense, it is alleged that on or about October 11, 1906, plaintiff’s account was duly balanced, and the book, showing said draft charged to his account, was, together with other checks and vouchers of plaintiff, given to plaintiff, and that he has ever since said time had the draft in his possession and made no objections or complaints or offer to return said draft until the month of June, 1907; that plaintiff continued thereafter to deposit money in defendant bank and check upon the same, and paid defendant large sums of money upon notes and other-forms of indebtedness, which was all done with full knowledge that the draft in controversy had been charged to his account; that on January 15, 1907, a final and complete settlement of all accounts between the parties was had, which adjustment included the draft in controversy, and that plaintiff then paid defendant all of his indebtedness and received his final balances on his account.'
The reply traverses the allegations of the answer; denies that plaintiff owned the horses; admits the institution of the suit against the railroad company and settlement of the same; alleges that the action was commenced by the attorneys of McMillan and conducted in plaintiff’s name only for the reason that the horses were consigned to him as a commission salesman and that he was present and could maintain said suit, while McMillan was absent; alleges that the pass book was balanced some time during the month of November; admits that the draft was returned to him, but alleges that he did not examine his vouchers immediately; that some time later, the exact date being to him unknown (but which date is fixed by Ms testimony as some time in November), he discovered that the draft had been charged to him, and immediately took the same to the paying teller of defendant bank, who had charge of pass books and vouchers for defendant, protested
Upon the trial, when plaintiff rested, defendant moved for a directed verdict in its favor, which motion was overruled, and the first error complained of is this ruling of the court. When defendant’s motion was overruled, it proceeded without protest and introduced evidence in support of the allegations contained in its answer. We think this is a waiver of any right to now insist that the court erred in the ruling referred to.
The second error complained of is the refusal of instructions 1 and 2 tendered by defendant. Both of these instructions are covered by No. 14, given by the court on its own motion; hence, it was not error to refuse them.
By assignments 4, 5 and 6 it is urged that there was error in giving instructions 12, 14 and 15, given by the ■ court on its own motion; but, as no exceptions were taken to the giving of these or any other of the instructions given by the court they cannot now be reviewed.
By the eighth assignment it is urged that the court erred in admitting in evidence a copy of a telegram, marked “Exhibit F,” for the reason that there was no identification of this message, as being a copy of the original, “by any one.” Plaintiff testified that, when he received the original telegram, he pinned it to a letter which he had received from McMillan and took the
The other assignments, of which there are several, all relate'to questions of fact in relation to the various matters pleaded. Upon all of these questions there is a direct conflict in the evidence. The jury were specially instructed as to each of the three affirmative defenses interposed. The case was submitted to the jury upon instructions to which defendant took no exceptions.
The evidence is sufficient to sustain a verdict either way. The court and jury saw the witnesses upon the stand, heard their testimony, and the jury by their verdict resolved all of these disputed questions in favor of the plaintiff. This verdict received the approval of the trial court. Under such circumstances, it is well settled that the supreme court will not interfere.
Finding no reversible error in the record, the judgment of the district court is
Affirmed.