46 Neb. 540 | Neb. | 1895
This action was brought by the German National Bank of Beatrice against the plaintiffs in error upon a promissory note, of which the following is a copy:
“$1,500. Beatrice, Neb., May 1, 1892.
“Sixty days after date I, we, or either of us, promise to pay to the German National Bank, of Beatrice, Neb., or order, fifteen hundred dollars, value received, payable at the German National Bank in Beatrice, Nebraska, with interest at the rate of 10 per cent per annum from due.
“Beatrice Rapid Transit & Power Co.,
“By N. N. Brumback, Pres.
“L. E. Spencer, Seo’y.
“L. E. Spencer.
“N. N. Brumback.
“S. K. DAvrs.
“Chas. L. Schell.”
The petition contains the usual averments. Two answers were filed, one by the Beatrice Rapid Transit & Power Company, and the other by the individual defendants. The answer of the corporation defendant avers, in effect, that it executed the note upon the ‘ understanding and agreement that plaintiff was to secure the signature of one G. M. Johnston to the note, and that the secretary and president of said defendant had no authority or power to sign said note upon any other condition, which fact was known to the plaintiff and its managing officer; that the note was only to be delivered upon Johnston’s signature to said note being obtained by said plaintiff, and that said condition has never been fulfilled or carried out. The individual defendants answer setting up that they each signed the note as surety, and upon the express understanding that it should not be delivered and was not to be a binding obligation until the same was signed by each of the individual defendants and the said G. M. John
The first three assignments of error relate to the refusal of the court to excuse the jurors Ered Hallingsworth, M. S. Glass, and G. W. Martin, for the reason the voir dire examination of each disclosed that he was indebted to, and did business with, the plaintiff. Whether these persons were disqualified from sitting as jurors in the cause we will not stop to determine. Conceding, for the purposes of this case, that they were incompetent jurors, still a reversal cannot be had upon that ground, for two reasons: First, the record fails to show which party challenged the jurors for cause or excepted to the ruling thereon. If the challenges were interposed by the plaintiff, and the jurors were retained over its objection and exception, clearly the defendants are not in position to have the decision of the court thereon reviewed here. Again, it does not appear that the defendants either exhausted all, or availed themselves of any, of their peremptory challenges. For this latter reason alone, the error, if any, in the overruling of the challenges for cause is without prejudice. (Palmer v. People, 4 Neb., 68; Burnett v. Burlington & M. R. R. Co., 16 Neb., 332; Curran v. Percixal, 21 Neb., 434; Nowotny v. Blair, 32 Neb., 175; Blenkiron v. State, 40 Neb., 11 ; Jenkins v. Mitchell, 40 Neb., 664.)
The next three assignments, the fourth, fifth, and sixth, are as follows:
*543 “4. The court erred in compelling defendants to exhaust their peremptory challenges in excluding the three jurors above named.
“ 5. The court erred in restricting defendants to three peremptory .challenges.
“6. The court erred in forcing the defendants to exhaust their peremptory challenges in removing from the jury men who were under financial obligations to plaintiff.”
Not one of the foregoing assignments is well taken, inasmuch as there is nothing in the record to indicate that the defendants were limited by the court to three or any other number of peremptory challenges, or that they challenged a single juror peremptorily. Error cannot be presumed, but must affirmatively appear, in order that a reviewing court may take cognizance thereof.
Assignments 7 to 19, both inclusive, relate to the giving and refusing of certain instructions, but only three of which, seventh, ninth, and tenth, are discussed in the brief of plaintiffs in error. The others will be regarded as waived.
It is insisted that the court erred in giving the following instruction at the request of the plaintiff:
“ 1. The court instructs the jury that though you may believe from the evidence that the makers of the note signed the said note with the understanding and agreement that one Johnston should sign the same, and that they should not be bound on said note unless said Johnston signed also, yet, unless the plaintiff bank had knowledge of this arrangement it would not bind them or be a defense to said note, and your verdict should be for the plaintiff.”
A single criticism is made upon this instruction, and that is, it is inapplicable to the facts established on the trial. As to this point, counsel for plaintiffs in error, in the brief filed, says: “The undeniable evidence is that Spencer, one of the signers of the note, was made by the bank, defendant in error, its agent to secure the signatures of the other parties to the note, so that agreements or state
The defendants asked this instruction: “The jury are instructed that if they believe from the evidence that the note sued on was signed by the parties defendant in this action with the understanding that it was to be signed by
Error is assigned for the refusal of the trial court t,o give the defend ants’* second instruction, which was thus: “ The jury are instructed that it was proper for the signers of the note in suit to make the taker of the note their agent to secure other signatures to the note, which were to be obtained by the plaintiff, as taker of said note, before said note became operative; and if the jury believe from the evidence that such agreement was made and was not carried out on the part of the plaintiff, then they will find for the defendants.” Undoubtedly, where a note is executed and delivered to the payee and by him accepted upon the promise or agreement that the instrument should be subsequently signed by another as maker, the execution and delivery would not be complete until the signature of such other person had been procured, and the jury were so informed by the charge of the court. Defendants’ second request was faulty, in that it assumes as a fact that the bank was to secure other signatures to the instrument after the delivery thereof. There is no evidence that the officers of the bank so agreed. There is evidence, it is true, tending to show that one person, Mr. Johnston, was also to exe
Complaint is made in the brief of the rulings of the court on the admission of testimony, but these decisions cannot be reviewed here, because of the insufficiency of the assignments relating thereto in the petition in error, the assignments being too indefinite to indicate the particular rulings claimed to be erroneous.
As to the sufficiency of the evidence to support the verdict, it is enough to say that without commenting upon the testimony at length, upon due’ consideration of it all, we. are satisfied that there is not an entire lack of evidence to sustain the finding and judgment. There was a conflict in-the testimony, but the weight to be given thereto was for tlje jury, and as a reviewing court we will not disturb the verdict, although we might have found differently had we-heard the case originally.
The individual defendants asked the court to submit to-the jury a form of verdict finding for them alone, which request was denied. In this there was no error, since it did not find either for or against the corporation defendant.. Plaintiff was, in any view of the case, entitled to a verdict against the Rapid Transit & Power Company and the draft of verdict prepared and submitted by the sureties was imperfect, in that it did not so provide.
Complaint is made of the form of verdict returned, which is as follows:
“We, the jury in this case, being duly impaneled and sworn, do find for the plaintiff and assess its damages at $1,601.25. ' E. Ault,
“ Foreman
The verdict is not objectionable as being indefinite iu not specifying who the finding is against. The damages are assessed in favor of the plaintiff and against all of the defendants. . Nothing could be plainer. Had the verdict
Affirmed.