72 Neb. 356 | Neb. | 1904
The nature of this case is sufficiently stated in the former opinions of this court. In Gandy v. Estate of Bissell, 3 Neb. (Unof.) 47, a judgment of the district court for Richardson county in favor of the defendant estate was reversed for errors there pointed out. After another
The third instruction asked by the plaintiff was an attempt to supply this necessary information to the jury, but was properly refused by the court because it contained the statement that if “the signature to the note in controversy is the genuine signature of William C. Bissell they will find for the plaintiff.” This was not the law of the case, because under the issues formed, the signature might be genuine; in fact, it would seem from the evidence that the name signed to the note was the genuine signature of Bissell, and yet under the issues it was competent to prove that Mr. Bissell did not sign the note sued upon. If the note had been fraudulently changed and the amount raised after the signature of Mr. Bissell, it was a forgery and Avas no more the note of Mr. Bissell than if the signature itself had been forged and was not the genuine signature of Mr. Bissell. This defense may be made under the general issue. 3 Randolph, Commercial Paper (2d ed.), sec. 1783. There was evidence tending to shoAV that Bissell had given small notes to plaintiff, and under all of the evidence it Avas for the jury to say whether the note sued upon was genuine. As well might the court have instructed the jury to find a verdict for the plaintiff as to have given this instruction as asked.
In an early Massachusetts case, which may be said to be a leading case upon this point, it was said by Mr. Chief Justice Parsons:
“If a man deliver a bond as an escrow, to be delivered on condition performed, before whicli the obligor or obligee dies, and the condition is after performed — here then1 could be no second delivery, yet is it the deed of the obligor from the first delivery, although it was only inchoate; but it shall be deemed consummate by the performance of the condition.” Wheelwright v. Wheelwright, 2 Mass. *447, 3 Am. Dec. 66; 6 Am. & Eng. Ency. Law (1st ed.), 870, 871.
The statement is repeated in these instructions that to constitute a delivery that would be recognized in the law, the note must have been delivered to Mr. Gandy by
The judgment of the district court is reversed, and the cause remanded.
Reversed.