74 Neb. 616 | Neb. | 1905
On September 24, 1902, J. T. Bend drew a check on the First State Bank of Overton for the sum of $111.35, payable to Stephens Brothers. Two days later this check was presented at the bank for payment by one of the members of the firm of Stephens Brothers and payment was refused, thereupon Stephens Brothers sued the bank
The principal contention of the bank is that the maker of the check had no funds in the bank at the time the check was presented for payment, and that by reason of
In the cross-examination of the cashier of the bank, counsel for plaintiff inquired if he would not have paid the check, in any event, had the maker not ordered payment stopped. An objecton was interposed that this was improper cross-examination; the objection was overruled, and the witness answered that he would probably have paid the check. The admission of this evidence on cross-
There was also a request to instruct the jury that the giving of the check by Bend to plaintiff was not a payment of the account owed by Bend to the plaintiff. This instruction was refused, and upon the refusal error is assigned. It is said by counsel that this instruction was necessary, because the jury may have understood that the giving of the check by Bend was an absolute payment, and that he was thereby released,, and that they probably found for the plaintiff on that theory. This contention cannot be sustained. The court properly refused to give the instruction requested.
Complaint is also made of the giving of instruction numbered 4 as follows: “You are instructed as a matter of law that J. T. Bend, after giving said check, could not arbitrarily countermand the payment of the same.” It is said that this instruction tended to mislead the jury. There seems to be no force in the contention, and it doubtless states a correct principle of law as applied to the facts in this case.
Instruction numbered 6 is as follows: “You are instructed that the burden of proof is upon the plaintiff, and he must satisfy you by a preponderance of all the material allegations of his petition, and if you And the evidence evenly balanced, or that it preponderates in favor of the defendant, then your verdict should be for the defendant.” A similar instruction was under consideration in City of Lexington v. Fleharty, p. 626, post, in an opinion delivered at the present sitting of the court, and was there held not to be erroneous, although faulty, because of the omission of the words “of all the evidence” after the word “preponderance.” In this case it might be said that the instruction, whether erroneous or not, must be held to be without prejudice, because the evidence would have justiAed a peremptory instruction to And for the plaintiff.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.