No. 14,764 | Neb. | Apr 4, 1907
In 1889, J. C. Crawford borrowed upon his note from one Lyon the sum of $3,000, and assigned to the payee, as collateral security, 30 shares of capital stock, belonging to him, of the plaintiff bank. The note, after its maturity, was indorsed and delivered, together with the collateral, to the bank for collection. Crawford, was unable to pay, and no satisfactory disposition could then be made of the collateral, and it was so arranged that the defendant and appellee herein, Kate Crawford the wife of the debtor, became surety on her husband’s note for $1,500, and half the collateral was assigned to her for her protection. The amount of the new note was renewed in the sum of $1,200, and repeated renewals of the latter have been made until shortly before the beginning of this action upon this last of them. In January, 1902, the Crawfords borrowed from the Nebraska State Bank, another institution, the sum of $1,500, with which they paid off and discharged the unpaid residue of the Lyon note. At that time the plaintiff delivered to them the certificate of the bank shares, which
Thus far there is no dispute about the facts, except that the plaintiff denies any arrangement or agreement between itself and Mrs. Crawford by which she was awarded any part of the shares of bank stock as security for her signature to her husband’s note, and denies any knowledge of any arrangement between her and the Nebraska State bank by which she was to retain a lien upon the shares in subordination to the lien of the latter. But a young lady, now deceased, a daughter of the Crawfords, who transacted all the business in their behalf, testified unequivocally to both arrangements, and she is fully cor1 roborated as to the former of them by Mr. Anderson, her counsel, who was present when the negotiations were in progress for obtaining the signature of the wife, and. we think she is corroborated also by the fact that at the
There is a sharp conflict with reference to one other matter of fact. The president testified that at the time that the $1,500 loan was made through Hunker and Wilde, and used to pay off tlie State bank note, he had a conversation with the daughter, who represented her parents in the business, and she agreed that the stock certificate should be returned to the bank, and that the proceeds of the shares when they should be disposed of should be used first for the payment of the Hunker and Wilde note, and that the residue should be appropriated toward the payment of her father’s general indebtedness to the plaintiff, and he says that he did not know that Mrs. Crawford had or claimed, or had ever done so, that she had a lien on any of the shares for her own security. We are persuaded, however, that he had known it, though the fact may have slipped from his memory, and the daughter testified that the conversation she had and the agreement she made with him, as she understood the matter, was that the plaintiff might retain and apply toward her' father’s general indebtedness so much as the 150 shares were worth, or as should be realized from them, in excess of their par or face amount; that amount to be used to satisfy the note of her mother for $1,200, and one given by herself, upon the same consideration, for the sum of $300. Her interpretation of the circumstances seems to us to be rather the more reasonable of the two, because it is hardly to be presumed that she would have, voluntarily
The court permitted the filing of an amended answer, setting up new matter in defense, after the trial had begun, but the cause was thereupon continued, and the plaintiff was afforded an opportunity to meet the new matter by pleading and evidence, so that the proceeding was somewhat analogous to that of allowing the withdrawal of‘.a juror and permitting an amendment after-wards, and appears not to have wrought the plaintiff any prejudice.
We conclude that the judgment is supported by the evidence, and recommend that it be affirmed.
By the Court: For the reasons stated in the foregoing-opinion, it is ordered that the judgment of the district court be
Affirmed.