This action was brought to recover a balance of $532.50, with interest, upon a promissory note for $887.75, dated January 6, 190-1, signed by defendants Chaney, Gettle and Hildreth. Verdict and judgment for defendants Chaney and Gettle. Plaintiff appeals.
The defendants Chaney and Gettle answered admitting
The reply pleads that from about August 1, 1903, until January 6, 1904, when the note in suit was given, the brickyard was operated by the three defendants, Chaney, Gettle and Hildreth; that the bank advanced various sums of money to them at various times in this period for use in the business; that before the note was executed the bank prepared and submitted to defendants a written statement showing each and every item of the running account, and all debits and credits, and that the balance due the bank on the account was $887.75; that the defendants were afforded an opportunity to inspect and verify each item and make objections thereto, and that defendants executed and delivered the note in payment and settlement
After both parties rested, plaintiff moved the court for an order striking from the record and instructing the jury to disregard ad that part of the testimony of Chaney and Gettle to the effect that, at the time or just prior to the time the note was executed, they weré assured by the plaintiff that they would never be called upon to pay the note, and that the same, was and should be no liability against them, for the reason that parol testimony is inadmissible to contradict and vary the terms of a written instrument. This motion was sustained.
Plaintiff now contends that, because the court sustained
By the latter portion of this instruction the testimony as to what was said at the time the note was given with regard to the purpose for which the note was given was again submitted to the jury for its consideration. If the testimony was admissible in the first place, the defendants alone were prejudiced by it being stricken out, and that portion of this instruction which tells the jury to disregard the testimony of defendants in this respect would only be prejudicial to them, and not to plaintiff; so that the fundamental question presented is: Was this testimony proper to be considered by the jury? Plaintiff relies upon the first opinion in First Nat. Bank v. Burney, 90 Neb. 432; but the law' laid down in this opinion was overruled upon a rehearing of that case (91 Neb. 269), and it was held that as between the parties such testimony may be received to explain the purpose for wdiich the note was given and to show that it was a mere memorandum.
The controlling issue which wras presented to the jury for its determination was whether the note was executed and delivered by the defendants to the bank in settlement of a stated account, or whether it wms given in renewal of a $1,000 note, which was originally given merely as a con
While we might ha\re reached the conclusion that the defendants Avere liable if Ave had been the triers of fact, the settled rule is that we are not entitled to interfere with the verdict of a jury on conflicting evidence, unless it is manifestly wrong. The instructions, while not entirely consistent, submitted eA^ery question of fact in the case, and we do not feel authorized to set aside the verdict.
The judgment of the district court is
Affirmed.