44 Neb. 594 | Neb. | 1895
This action was brought by the bank on ten promissory notes for $25 each, made by Rice to the order of a corporation styled the Opera House Company, and alleged to-have been indorsed and transferred to the bank. The answer denies the transfer, denies that the bank is the owner of the notes, and then pleads specifically a number of facts which practically, for the most part, merely support the-denials referred to. There was a verdict for the defendant, the judgment whereon the bank by this proceeding seeks to reverse.
It is argued that the defendant is not in any position to litigate the respective rights of the bank and the opera house company. This is true, but his defense is not based •on such relations. The bank, as part of its case, must show that it is the lawful holder of the notes. Unless the bank is the owner of these notes, a judgment thereon would be no defense to the defendant in an action brought against him by the Opera House Company, or the real owner of the same notes. It is very clear that the answer sets up a good defense. (Schroeder v. Nielson, 39 Neb., 335.)
On the trial the defendant was given leave to amend by interlineation his answer so as to deny the genuineness of the indorsements on the notes. The granting of this leave is assigned as error. The permitting or refusing of amend
Certain assignments of error relate to the evidence. N. R. Persinger was called by the plaintiff to identify the motes sued on, and testified that they had been transferred <by the banking partnership to the plaintiff bank. On •cross-examination he was asked, “ Is the signature on the face of those notes and the signature to the indorsements -of them the same? Look at each one carefully.” This was objected to as not proper cross-examination and the overruling of the objection is assigned as error. While the genuineness of the indorsements by the Opera House •Company to the banking partnership was not within the--scope of the direct examination, we think it was proper in -cross-examination as to the identity of the notes, which was the subject-matter of the direct examination, to call attention to the peculiarities which might affect the witness’ judgment as to the identity of the papers.
Error is also assigned because the defendant was permitted to testify that he never indorsed his name to the motes. It is argued that his indorsement was not necessary to transfer these notes to the bank; but conceding that this as true, still, if he had indorsed them for the purpose of transferring them to the bank he could not now maintain & defense on his own behalf based on his want of authority -so to do. This evidence was material at least for the purpose of avoiding the estoppel. The defendant was also permitted to testify that he had not, as secretary of the com
A page of the treasurer’s book was offered in evidence, but two items thereon were excluded on objection of the defendant. The exclusion of these items is assigned as error. No offer was made disclosing the materiality of these-items, and while, perhaps, the whole page should havergone in evidence, if any portion was admitted, still, as counsel did not point out in what respect the excluded items were material, and as we cannot conceive from an examination of the items themselves how they were material, the error, if error it was, was without prejudice.
Judgment affirmed.