281 N.W. 796 | Neb. | 1938
On December 1, 1937, the district court for Clay county entered an order on a hearing upon the application of the plaintiff for a deficiency judgment and objections thereto filed by Carl R. Anderson and Mabel O. Anderson, defendants. The court found that no liability existed on the part of the defendants Anderson, or either of them, for a deficiency judgment, and denied and dismissed the application, to which plaintiff excepted. The court overruled the motion for a new trial, and plaintiff appeals to this court.
All of the proceedings relative to the foreclosure of the mortgage as against defendants in this action, the confirmation of the sale, and the application for a deficiency judgment in the sum of $5,326.40, have been examined and found regular in form. The pertinent facts in this case may be summarized as follows:
On February 8, 1931, defendants Carl R. and Mabel O. Anderson, Rose Ruby Wells and William R. Wells executed several notes, totaling $9,000, the mortgage being executed at the same time. Before these notes and mortgage were signed, Carl R. Anderson held title to 155 acres of land in Clay county, subject to a mortgage of $9,500, due the plaintiff, and made application for a renewal of that mortgage by paying $500 on the 9,500-dollar notes, and adding 12 acres
The principal question raised in this appeal is whether or not oral testimony of an agreement, had between defendants Anderson and the agent of the original mortgagee at the time of the execution of the promissory notes, was admissible in evidence, or whether such oral testimony was an attempt on the part of defendants Anderson to vary and contradict the terms of a written instrument. The court admitted the oral testimony, which is shown by the evidence as follows:
Carl R. Anderson, in answer to question 26, stated: “He said it would be all right for us to sign those and they would hold Mr. Wells and Rose Ruby Wells as the parties to pay this mortgage; that the security they had, they were satisfied with the security; and we would not be held responsible.” The evidence of William R. Wells develops that when the interest became due on the note the time was extended by the Lincoln Trust Company, the extension agreement being signed by defendants Wells. The evidence does not show that defendants Anderson knew of the extension agreement.
The appellant contends that the notes signed by defend
A different situation arose in that case than in the case at bar, and the facts are not similar or analogous. In the instant case and cases of a similar nature, this court has admitted testimony to show the real purpose by which a promissory note was executed, when such note was sued on by the payee named in the note, and in the instant case the trust company stands in the same relation as the original payee by virtue of the bankruptcy proceedings of the original payee and the appointment of the First Trust Company as trustee to carry on the business of the bankrupt payee.
In Davis v. Sterns, 85 Neb. 121, 122 N. W. 672, this court held: “It is not error to submit oral testimony to the jury to show the purpose for which a negotiable promissory note was executed, where such note is sued on by the payee named in the note.” The above holding was followed and quoted in Spangenberg v. Losey, 116 Neb. 112, 216 N. W. 191, wherein other cases were cited which hold to like effect.
In the instant case defendants Anderson signed the notes on the promise and agreement of the agent of the plaintiff
The case of Security Savings Bank v. Rhodes, 107 Neb. 223, 185 N. W. 421, which appellant quotes in its brief, is distinguished. In that case the party agreeing to pay the note was not a signer of the note, and the payee was not a party to the oral agreement, as in the case' at bar. We believe that the signatures of the Andersons on the notes in question constituted an accommodation, under the definition of “accommodation paper,” and that the evidence clearly shows that this is not an obligation of Anderson; that the Lincoln Safe Deposit Company was a party to the transaction, and that it took place before the notes were signed; that it was understood and agreed that it was the obligation of Wells, who undertook to assume the mortgage and even signed the notes, to show his liability for the debt.
In Lee v. Hildebrand, 119 Neb. 717, 230 N. W. 673, we held: “One to be an accommodation maker of a promissory note must not receive any benefit or consideration directly or indirectly by way of the transaction of which the note was a part, and the transaction must be one primarily for the benefit of the payee.” Anderson was, under the facts in the instant case, an accommodation maker.
In the case of Empson v. Richter, 113 Neb. 706, 204 N. W. 518, it was held: “An accommodation maker of a promissory note is not liable to the party accommodated,” which holding is followed in the case of Willis v. Sponsler, 117 Neb. 1, 219 N. W. 581.
Other propositions of law urged by appellant to obtain a reversal are not, in view of our holding, necessary to a determination of this case.
The order of the trial court denying a deficiency judgment against defendants Anderson is
Affirmed.