110 Neb. 62 | Neb. | 1923
Action on negotiable promissory note by the holder against the makers thereof. Plaintiff had the verdict and judgment thereon and defendants have appealed.
Paul Aevermann, Herman Aevermann and Mrs. William Aevermann were the makers and Lou Conway the payee of the note. Plaintiff purchased the note from the payee. The petition was in the usual form. A .joint answer of all the defendants alleged that the note was procured by fraud, misrepresentation and duress, but failed to allege any facts that would constitute fraud •or duress as to any of the defendants except Mrs. William Aevermann. Failure of consideration was also alleged
Defendants complain that the court abused its discretion in denying them leave to file amended and substitute answers. The record fails to shoAV any ruling of the court upon this question, and further fails to shoAV that any request Avas made for leave to file any amended or substitute answers. This court will not review an alleged ruling of the district court Avhere the record brought to this court fails to disclose that the ruling-complained of Avas, in fact, made by the trial court.
Complaint is made because the trial court excluded evidence tending to establish fraud in procuring the .signature of Mrs. William Aevermann to the note. If any error Avas committed in this respect, it Avas nor prejudicial to any of the defendants other than Mrs. William Aevermann, because no facts constituting fraud ■Avere alleged, and the evidence offered did not tend to establish any fraud as to them; nor can the error, if any, be considered in this court as to Mrs. .William Aevermann, because she did not file a separate motion for a neAV tidal. All Of the defendants joined in one motion for a new trial, and, under the rule established in this jurisdiction, if error assigned in the motion for a new trial is not good as to all, it is not good as to any of the joint movers. Hoke v. Halverstadt, 22 Neb. 421; Long & Smith v. Clapp, 15 Neb. 417; Dorsey v. McGee, 30 Neb. 657; McDonald v. Bowman., 40 Neb. 269; Harvey v. Harvey, 75 Neb. 557.
Complaint is made because the court took the case from the jury and directed a verdict for the plaintiff upon his motion. Where the verdict of a jury is directed In a law action, the parties against Avhom the verdict goes are entitled to have the most favorable construction put upon the evidence received and offered by them. It becomes necessary, therefore, to examine the record in this case to see whether there Avas sufficient evidence tending
Prom .an examination of the record, we conclude that there Avas sufficient evidence, tending to impeach the good faith of the plaintiff in the purchase of the note, to require the submission of that question to the jury, if there Avas substantial evidence, received or offered, in support of the defense alleged. There Avas evidence offered and excluded Avhich tended to establish a failure of consideration for the note. Under the circumstances, this Avas errox*, axxd the trial court should have received this evidence axxd should have submitted to the jury the questioxx of failure of consideration. Under this state of the i-ecord, the couxd was xxot justified in taking the case from the jury axxd directing a verdict in favor of the plaintiff. .
The judgment of the district court is reversed and the caxxse remanded for a new trial.
Reversed.