No. 18941 | Neb. | Jun 3, 1916
This is an appeal from the judgment of the district court for Cheyenne county. The action was brought by the First National Bank of Sidney, Nebraska, against J. C. Baldwin, J. M. Swenson and M. Radcliff on a promissory note which reads as follows:
“$1,000. Sidney, Nebraska, Dec. 29, 1910.
“June 26, 1911, for value received, we jointly and severally promise to pay to the order of J. M. Swenson, of Sidney, one thousand and ' no/100 dollars at the First National Bank of Sidney, Nebraska, with interest at the rate of ten per cent, per annum from maturity until paid.
“The makers and indorsers hereof waive demand, notice, and protest, and all defenses on the ground of any extension of the time of payment that may be given by the holders to them or either of them. (Signed) J. C. Baldwin.
“M. Radcliff.
“No. 5605. Due June 26, 1911.”
The note bore the following indorsement: “J. M. Swenson.” There was also another indorsement as follows : “For value received I hereby guarantee payment of the within note and waive demand and notice of protest on same when due. (Signed) J. M. Swenson.”
By agreement the cause was tried to the court, and resulted in judgment for the plaintiff and against Baldwin and Swenson. Swenson alone has appealed.
The answer admitted the execution, indorsement and delivery of the note to the plaintiff, but it was alleged by appellant that, subsequent to the maturity of the note, the plaintiff, without the knowledge and consent of the defendant, and for a valuable consideration, extended the time of • payment thereof to the makers, by reason of
“June 26, 1911.
“Please extend the within note for six months from this date. (Signed) J. M. Swenson.”
The reply of the plaintiff was in effect a general denial.
The appellant contends that the note was not a negotiable instrument, and authorities from a few states are cited in support of his contention. On the other hand, it seems clear that a majority of the more recent authorities, and especially those under the present negotiable instruments law, clearly hold to the contrary. The clause waiving all defenses on the ground of extension of time has been held not to destroy the negotiability of the note. First Nat. Bank v. Buttery, 17 N. Dak. 326; National Bank of Commerce v. Kenney, 98 Tex. 293" court="Tex." date_filed="1904-12-01" href="https://app.midpage.ai/document/national-bank-of-commerce-v-kenney-3941693?utm_source=webapp" opinion_id="3941693">98 Tex. 293; Jacobs v. Gibson, 77 Mo.
By section 5323, Rev. St. 1913, it is provided: “An instrument which contains an order or promise to do any act in addition to the payment of money is not negotiable. But the negotiable character of an instrument otherwise negotiable is not affected by a provision which: * * * Third — waives the benefit of any law intended for the advantage or protection of the obligator.” We therefore hold that the note in question was a negotiable instrument.
It is further contended by the appellant that there was a misjoinder of causes of action, in that the appellant could not be sued jointly with the makers of the note.
Again, this precise question was ruled on in Weitz v. Wolfe, 28 Neb. 500" court="Neb." date_filed="1890-01-14" href="https://app.midpage.ai/document/weitz-v-wolfe-6646538?utm_source=webapp" opinion_id="6646538">28 Neb. 500. In that case the payee of a note, when selling the same, indorsed it as follows: “I guarantee the payment of the within note, waiving demand and notice of protest.” It was there held that the liability of the defendant was not that of a mere guarantor who could not be joined in the same action with the maker of the note, but, like the appellant in this case, was an indorser with an enlarged liability. Therefore the action was properly brought against the appellant and the makers of the note.
Appellant also contends that he had the right to forbid the bank from giving any extension of time for payment, and it is argued that no consent to any extension of time can be found in the clause waiving all defenses by reason of an extension. It is further argued that the defendant Swenson had the right at any time to prevent an extension being given. However, on the question of the extension the evidence is conflicting. The plaintiff testified that Swenson never notified him not to give any further extension of time on the note. Under the rule often ah
From an examination of the record, we find no reversible error, and the judgment of the district court is
Affirmed