91 Neb. 835 | Neb. | 1912
This action was instituted in the district court for Olay county to recover a balance claimed by plaintiff to be due to it upon an open deposit account subject to check, which it had with defendant, amounting, as alleged, to $6,112.91. The defendant admitted liability and offered to confess judgment for $819.86, which offer was refused. After both sides had rested, the court directed a verdict in favor of plaintiff for $6,121.08, and entered judgment thereon. Defendant appeals.
Plaintiff and defendant are banking institutions organized under the laws of this state, and during the times in controversy were closely allied in business transactions ; the cashier and managing officer of’plaintiff, J. O. Walker, being a member of the board of directors and at least nominal president of defendant. In February, 1907,
The only matter in controversy here is this note. Upon the trial the district court excluded the testimony offered by defendant in support of its alleged contemporaneous oral agreement that plaintiff would guarantee the payment of the note in controversy, on the ground that it tended to vary the terms of a written instrument; and it is urged by plaintiff here that, “under the terms of this written indorsement, the defendant, when it purchased the original note and accepted the renewal notes, contracted with the plaintiff that the plaintiff should not be liable thereon or for the payment thereof. This written indorsement cannot be contradicted, varied or explained by evidence resting in parol.” This contention is in line with the holding of the district court, but we think the rule in this state is settled adversely to plaintiff’s contention. In Norman v. Waite, 30 Neb. 302, we held: “The existence of a written contract or instrument, duly executed between the parties to an action and delivered, does not prevent the party apparently bound thereby from pleading and proving that contemporaneously with the execution and delivery of such contract or instrument the parties had entered into a distinct oral agreement which constitutes a condition on which the performance of the
There would seem to be another good reason to doubt plaintiff’s right to recover in this action. In the letter of December 24, 1908, above set out, the cashier of plain-tiff says: “This note was never owned by this bank, it was never run on our books.” If so, why .should plaintiff have any credit for it on defendant’s books. The inference is that the McMaster note was a transaction between McMaster and Walker personally, and for that reason it never was run on the books of plaintiff bank. There is no evidence to show that McMaster ever received any money from plaintiff bank for the note. If so, plaintiff has lost nothing by its nonpayment. By its letter of December 24 it repudiates all ownership of it, and it would seem that it should abide by such repudiation. If it never paid McMaster the consideration for the note, and never carried it upon its books, we see no reason why it should demand payment of it. But counsel for defendant say
The judgment of the district court court is reversed and the cause remanded for further proceedings.
REVERSED.