78 Neb. 624 | Neb. | 1907
On tbe 17th day of December, 1901, W. A. Stewart bought some cattle from H. T. Church to feed for the market. The money to pay for them was advanced by Bhellv-Rogers Company, on a note of that date, payable to itself on the 14th day of July, 1902, signed by Stewart and indorsed by Church. The note was secured by mortgage on the cattle. Before the maturity of the note the company indorsed it in blank and discounted it to the Home Savings Bank of Fremont. Afterwards, on the 15th day of July, 1902, Stewart delivered the cattle included in the mortgage, with some others, to the company, who disposed of them and remitted the proceeds to the savings bank, who on receipt of such proceeds credited them on the
Plaintiff contends that the verdict is not sustained by
SteAvart testified, in substance, that about the time the note matured he Avrote the company Avith the vícav to turning in some cattle in discharge of the debt; that afterwards their agent called on him and produced the note and mortgage; that, after talking the matter over, it Avas agreed betAveen them that he should turn over to the company the cattle covered by the mortgage, and four head of other cattle, in full satisfaction of the amount due on the note; that the cattle Avere to be delivered at a neighboring toAA’n the next day but one, and that it was understood that the agent Avould not be there to receive them in person, but that they Avere to be left at a certain livery barn. It Avas also understood, according-to his testimony, that the note, and certain other papers of Avhicli it Avas a renewal, should be subsequently forAvarded to him. He further testified that- he deliArered the cattle at the time and place agreed upon, and that he made the settlement Avith the agent, and delivered the cattle in pursuance thereof, Avithout notice or knoAvledge that the plaintiff OAvned or claimed to own the note. That the company got the cattle covered by the agreement, or a portion of them at least, sold them and remitted the proceeds to the plaintiff, >vho indorsed it on the note, is conclusively established. From the verdict of the jury it is quite clear that they gave full credit to Stewart’s testimony with respect to his settlement with the company’s agent... While that testimony does not stand uncontradicted, it is not inherently improbable. In fact it is corroborated to a certain extent by other circumstances appearing of record. Such being the case, we are not at liberty to disregard it, but, under the finding of the
Proceeding, then, on the hypothesis that the company’s agent was in possession of the note at the time of the settlement with Stewart, there is no claim or pretense that his possession was wrongful. On the contrary, it was as agent of the company, which must have been in possession with the knowledge and consent of the plaintiff. The plaintiff, then, must be held to have clothed the company with the indicia of ownership, and allowed it to hold itself out to Stewart as the owner and holder of the note, and, as such, having full power and authority to enter into an agreement for its discharge. Acting upon such ostensible ownership and authority Stewart entered into the agreement for the discharge of the note, and fully kept and performed his part of it. These facts, we think, estop the plaintiff to deny the authority of the company to make the agreement or to receive the property agreed upon in discharge of the note. Paulman v. Claycomb, 75 Ind. 64; Cothran v. Collins, 29 How. Pr. (N. Y.) 113. See, also, Thomson v. Shelton, 49 Neb. 644; Phœnix Ins. Co. v. Walter, 51 Neb. 182; Holt v. Schneider, 57 Neb. 523.
It is next claimed that the court erred in an instruction to the jury to the effect that the burden was upon the plaintiff to prove every material allegation of its petition by a preponderance of the evidence. One ground upon which this instruction is assailed is that neither by it nor by any other portion of the charge were the jury instructed what allegations of the petition were material. The petition was set out at length in one of the instructions. Our‘ attention has not been called to any immaterial allegation which it contains, nor have we discovered any. Therefore, if the jury disregarded any of the allegations, the error would inure to the plaintiff’s rather than to the defendants’ advantage. It further appears that the court was not asked to supply the omission now complained of. On this state of the record it would seem
Another objection to these instructions is that, while the execution of the note and the indorsement of the payment thereon stood admitted by the pleadings, they wore included among the questions to be determined by the jury according to this instruction. These matters stood admitted throughout the whole trial. The jury were instructed that they stood admitted. In such circumstances, the. possibility that the jury, by the instruction in question, were led to believe that such matters were still in dispute, and that they were at liberty to find against the plaintiff thereon, is too remote to be seriously considered.
The plaintiff complains of an instruction to the effect that the possession of a promissory note is presumptive of ownership. One criticism urged against this instruction is that there was no evidence to warrant it. This criticism is unfounded. According to Stewart’s testimony, an agent of the payee company, with the note in his possession, called on him in response to a letter to the company looking to a settlement of the debt; the cattle were delivered to this agent, who, in turn, delivered them to the company, whose agent he was at the time. His possession, therefore, was the possession of the company, which could only act through agents. The evidence was ample, we think, to warrant the instruction.
Another criticism of this instruction is that it ignores the fact that the note was indorsed by the company. The indorsement was in blank. A negotiable note indorsed by the payee is payable to bearer. Selover, Negotiable Instruments Law, sec. 152; 1 Daniel, Negotiable Instruments (5th ed.), sec. 698. The possession of a negotiable note indorsed by the payee in blank is presumptive of ownership.' See 1 Daniel, Negotiable Instruments (5th ed.), secs.
The plaintiff tendered certain instructions, to the effect that a settlement in discharge of the note would not be binding unless authorized by it. These instructions wholly ignored the theory of ostensible authority, and, for that reason, were properly refused.
The plaintiff also complains of certain instructions given touching the defense urged by Church, going merely to his owm liability on the note. As we have seen, the case was submitted on the theory that his liability on the note wras secondary to Stewart’s. That being true, while the jury might have found in his favor on the separate defense urged by him, and at the same time against Stewart, a finding in favor of Stewart necessitated a finding in favor of Church. As they found in favor of Stewart, thereby necessitating a finding in favor of Church, error in the submission of the issues raised by the special defense urged by the latter wmuld be error without prejudice.
Lastly, it is insisted that the record shows misconduct on the part of counsel for the defendants in his closing argument, to the jury. At least the closing portion of this argument w-as taken down and is made a part of the bill of exceptions. It covers between 12 and 15 pages. No objection was interposed until the close, wdien counsel for the plaintiff interposed an objection to the effect that he “objected to the manner and style of the foregoing argument, and then and there duly excepted to the same.” No ruling of the trial court was asked and none made. As was said in Chicago, B. & Q. R. Co. v. Kellogg, 54 Neb. 127: “This court, in a proceeding of this kind, does not
The record fails to disclose any error that ivould warrant a reversal of the judgment in this case, and we therefore recommend that it be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.