7 Neb. 84 | Neb. | 1878
\ This is an action on a promissory note, made by the defendant to one J. B. Thompson, or order, on the fourth day of December, 1871. The note was given for the sum of $800, and was payable at the banking house of Bruner, Neligh & Kipp, at West Point. On the fourteenth of August, 1872, a payment of $500 was indorsed on the note. The plaintiff claims to be the assignee of the note, and asks for judgment in the sum of $366.66 with interest.
The defendant in his answer to the petition denies: First, that the plaintiff is the owner of the note. Second, that he is a bona, fide holder for value before the maturity thereof. Third, that defendant claims as a set-off against said note the sum of $258 paid to E. Krause on the order of J. B. Thompson, the payee of said note, said
The plaintiff, in his reply, denied the new matter contained in the answer.
On the trial of the cause the defendant was called as a witness in his own behalf, and testified as follows on his direct examination:
Q. What was the $400 for, set up in your answer?
A. I and Thompson built a house together; after-wards it was sold; Thompson collected all the money received therefor, and failed' to pay over my share.
Q. This was the latter part of October when the house ancl block were sold?
A. Mr. Thompson received on the sale of this house $600; he never paid any part of it to me in money, nor did anybody pay it to me for him.
On cross-examination he testified as follows:
Q. You say that you and J. B. Thompson were in partnership ?
A. With me in this house in Neligh City. The house was built the latter part of February, 1873.
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Q. Did you not state in your direct examination that you and Thompson built this house together in partnership ?
A. I stated that we built it together.
Q. What other business did you carry on in partnership with Mr. Thompson, if any?
Objected to by defendant as immaterial; objection sustained. Plaintiff excepted.
The cross-examination of a witness must be restricted to the facts and circumstances drawn out on his direct examination. If it is desired to examine him upon other matters, the party desiring such examination must
In this case the plaintiff was entitled on cross-examition to inquire of the defendant as to the nature and extent of the partnership referred to, particularly in a case like this, where the defendant had testified that Thompson “never paid him any part of it (the price of the house) in money, nor did anybody pay it to me for him.”
When an overdue promissory note is assigned, the assignee takes it subject to all equities existing between the maker and the payee. In an action on the note the maker may show that it was obtained by fraud, or without consideration, or that before he received notice of the assignment he had paid it. The maker may also set off any liquidated demand which he held against the payee at the time he received notice of the assignment, but claims subsequently acquired, even though they had their origin in previous transactions, are not the subject of set-off. Follet v. Buyer, 4 Ohio State, 502.
The question of notice does not arise. The instructions given by the court on its own motion appear to cover all the questions arising in the case. The court, therefore, did not err in refusing to give the instructions asked by the plaintiff. Where, however, the court refuses to give instructions because previously given, the ref%isal should be placed on that grov/nd.
Reversed and remanded.