62 Neb. 530 | Neb. | 1901
In the trial court the jury were instructed peremptorily to return a'verdict in favor of the Nfendant, which was accordingly done. On the verdict thus returned, after overruling a motion for a new trial, judgment was rendered against the plaintiff from which it prosecutes error proceedings from the court below to obtain a review of the trial therein had. The plaintiff began an action in replevin for the recovery of the possession of twenty-three volumes of the American and English Encyclopedia of Law then held by the defendant under a contract for the sale of the property on condition. By the contract of sale
Conceding that the sentence quoted, and to which we have heretofore referred, was inserted in the contract of sale without defendant’s consent and after delivery, it is not, we think, such an. alteration as will avoid the contract. It is but a reference of a descriptive character as to certain notes accompanying the contract which were to evidence the unpaid balance of the purchase price. The legal status of the parties, so far as this action is concerned, was not changed thereby nor did it in any way materially affect the instrument evidencing the contract of conditional sale. The notes themselves must determine the respective legal rights of the parties in respect of the terms as to interest on the deferred payments of the purchase price. The sentence only referred to these notes in the nature of a memorandum as to the stipulations they should or did contain as to interest. Whether the notes or any of them in fact drew interest recourse must be had to these several instruments to determine the question, and the payer’s liability for interest is determined by the wording of the notes irrespective of the alleged alteration of the sale contract. The contract as consummated between the parties was that the title to the books should remain in the seller until paid for, and if the notes given for the deferred payments were not paid within thirty days after any one or more of them became due, the seller might retake possession of the property and that with the cash payment of $12 to be paid on the delivery of the books the
Now, at the time of the commencement of the replevin action, it is beyond peradventure of doubt that two of the notes, against which nothing can be said as to their validity, remained unpaid although past due for a period much longer than required under the terms of the contract. This fact, when established, made plaintiff’s cause of action complete and entitled it to a judgment awarding it the right of the property and the possession according to the terms of the contract. But it is contended that, there being evidence of a material alteration of the notes maturing more than twelve months after date, this not only avoids the notes altered but also the entire contract of which they formed a part and that plaintiff can not therefore recover. We do not so regard it. It is true that the alteration as to these notes was material and would prevent any recovery on any contract resting for enforcement on their non-payment. The material alteration of a part only of a series of notes forming a part of an entire contract can have the legal effect of vitiating such contract only to the extent that it must rest on the altered instruments for enforcement. Had the defendant satisfied the notes whose validity is unquestioned, then perhaps the plaintiff would have no legal demand against him and there would be no default in any of the terms of the legal contract existing between them or any part thereof. Bn t having a valid and legal demand for the part of the consideration represented by the unpaid notes regarding which there is no claim of alteration, the plaintiff is in as favorable position to enforce its contract as though the whole sum remained unpaid and against which there existed no valid defense. The defendant had never completed his contract for the purchase of the books. He had, at most,
The judgment is reversed and the cause remanded for further proceedings in accordance with law..
Reversed and remanded.