54 Neb. 104 | Neb. | 1898
This action was brought by Mary W. Gaylord in the district court of Douglas county against the Nebraska Savings and Exchange Bank for the value of a certain promissory note which plaintiff alleged the bank had wrongfully converted to its own use. This note was dated December 15, 1891, and by its terms was payable to Mary W. Gaylord, or order, December 15, 189 b, with interest at the rate of six per cent per annum, evidenced by semi-annual coupons. The defenses of the bank will probably be best understood if there is given a portion of the undisputed history of this note subsequent to its execution.
Ralph E. Gaylord, a member of the firm of Muir & Gaylord, was the only son of Mary W. Gaylord. The note in question was taken by him in settlement of some controversy and was, with a mortgage securing it, sent in a letter to plaintiff January 2, 1892. In this letter, addressed to Mrs. Gaylord in Florida, there was the following language: “Now I want, at the first opportunity, to dispose of this note and mortgage for you so as to lend the money for you at a better rate of interest. I think I can do this soon. That I may have everything ready for this I inclose the bond for your indorsement and an assignment of the mortgage for your signature and acknowledgment. On the back' of the note and each coupon you will see the words, ‘Pay to the order of.’ Please sign your name Mary W. Gaylord on the pencil line drawn under those words, eleven places in all. Also please sign your name to the assignment on the line
“Pay to the order of “Mary W. Gaylord.”
There were denials in the answer of the bank, and there were also averments that the firm of Muir & Gay-lord acted within the scope of its powers in transferring said note and mortgage to the bank, but there was no evidence to sustain these defenses, and Mrs. Gaylord testified that the above quotation from the letter of her son indicated the only manner in which he, or the firm of Avhicli he was a member, was authorized to use tin* note and mortgage. The answer of the bank, however, contained the following averments: “Further answering defendant says that it did on the 9th day of March, 1892, loan to Muir & Gaylord, F. I). Muir and Rali>h E. Gay-lord, the sum of eight thousand dollars ($8,000), lawful money of the United States, and did receive from the said Muir & Gaylord, F. D. Muir and Ralph E. Gaylord, their promissory note for the payment of the said eight thousand dollars ($8,000) and interest six months after date. Defendant alleges that it did on the 9th day of May, 1892, loan to the said F. D. Muir and Ralph E., Gay-lord the further sum of eight hundred dollars ($800) and receive the promissory note of the said F. .D. Muir and Ralph E. Gaylord for the payment of the said eight hundred dollars ($800) and the interest ninety days after date. Defendant further says that at the time of the loan to the said Muir & Gaylord of the said eight thousand dollars ($8,000), to-wit, on March 9,1892, the said Muir & Gaylord had in their possession under their control the assign
In the consideration of this case we shall not attempt to disciiss the negotiability of the note, but, for the argu
The answer of the bank, in so far as it specially pleaded an estoppel as against the plaintiff, has already been quoted. It was proper that this defense should be specially pleaded. (Nebraska Mortgage Loan Co. v. Van Kloster, 42 Neb. 746; Erickson v. First Nat. Bank of Oakland, 44 Neb. 622; Gregory v. Kenyon, 34 Neb. 640; Scroggin v. Johnson, 15 Neb. 714.) The testimony of plaintiff, that she did not authorize her son, or the firm of which he was a member, to use the note as collateral security was uncontradicted. Whether or not the bank furnished the money on the faith of this collateral, and whether or not it was deceived into doing so by representations of the agent of plaintiff apparently-sanctioned by her acts or negligence, were questions of fact which should have been submitted to the jury. It was erroneous peremptorily to direct a verdict for the defendant, and the judgment of the district court is therefore reversed and this cause is remanded for further proceedings.
Reversed and remanded;