111 Neb. 744 | Neb. | 1924
This action was brought by- the Jackson State Bank of Jackson, Nebraska, against the Laurel National Bank of Laurel, Nebraska, to recover on a draft for $300 issued by the defendant and drawn on the Security National Bank of Sioux City, Iowa, in which Roy Vernon was named as payee,
The principal question in dispute was whether Vernon, the payee named in the draft, had indorsed it.
It may not be amiss to state some of the facts which gave rise to the present controversy. It appears that Vernon, in behalf of himself and another, had made arrangements with a bootlegger to purchase a number of cases of whisky to be delivered and paid for in cash at Allen, Nebraska. The delivery of the whisky and the collection therefor was to be made by Louis Johnson. On April 12, 1919, Vernon went to the town of Laurel and purchased the draft in question, giving in payment therefor his personal check drawn on the Dixon Bank of Dixon, Nebraska. On the same day he also purchased from the First National Bank of Laurel a draft for $850. The present suit involves only the draft for S300 issued by the Laurel National Bank. By arrangement, Vernon met Johnson at Allen, where two barrels supposed to contain the cases of liquor were delivered to a confederate of Vernon, and -thereupon Vernon delivered the two drafts to Johnson. There is a direct dispute in the evidence as to whether Vernon indorsed the drafts, which will presently be considered. On the same day Johnson went to the town of Jackson, where he presented the drafts to the plaintiff bank for payment. The cashier of the plaintiff bank testified, in substance, that when the drafts were presented he did not examine them carefully, but thought they bore no indorsement; that he supposed the drafts were being presented by Vernon, and said to Johnson, the drafts are all right, and if you are Roy Vernon and can be identified you can get the money; that Johnson replied, “If I wasn’t Roy Vernon, I wouldn’t be getting
Johnson testified that he did not represent himself to be Vernon; that he did not write the name “Roy Vernon” on the drafts; that the indorsement was made by Vernon at the depot in Allen at the time the drafts were delivered.
Beith testified that he did not understand that the cashier was under the belief that Johnson was Vernon; that the cashier simply asked him whether he knew this man, and that he answered that he did.
Vernon testified that he did not indorse the drafts. Other testimony was introduced on both sides tending to corroborate their respective theories.
Under this state of facts, it was clearly a question for the jury to determine whether the draft in question was indorsed by Vernon.
Meanwhile, at the earliest opportunity, Vernon proceeded to examine his newly-made purchase. One can readily imagine his chagrin on discovering that, instead of the cases of whisky, the barrels contained only shelled corn. Realizing that he had been duped by a bootlegger, he hastened to the telephone and stopped the payment of his check, and also stopped the payment on the draft.
Under this state of the record, the payment of the check given to the defendant bank for the' draft having been stopped by Vernon, it is clear that the defendant received no consideration for its draft. As between Vernon and the defendant bank, the latter had the right to stop the payment of its draft. The question is then presented whether
The question whether Vernon indorsed the draft was submitted to the jury by instruction No. 4, which was as follows : “If the jury believe from the evidence that the draft, exhibit A, sued upon by the plaintiff was issued by the defendant payable to the order of Roy Vernon, and that said Roy Vernon never indorsed said draft, then you should find for the defendant and so say by your verdict.” In response to this issue, the jury returned a verdict for defendant. The plaintiff criticises the above instruction, but we think it was responsive to the evidence and is a correct statement of the law.
Plaintiff also complains of the giving of instruction No. 5, given by the court on its own motion, but in the motion for a new trial no complaint is made of that instruction. Plaintiff also complains that the court erred in failing to give instruction No. 2, requested by the plaintiff. This instructon was to the effect that a negotiable instrument may be transferred by a separate oral agreement, followed by a delivery. It is unnecessary for us to decide whether an oral agreement would constitute an equitable assignment of the instrument, but a verbal assignment would not constitute such a transfer of the instrument as to preserve its negotiable character.
Complaint was also made of the failure of the court to give other instructions requested by the plaintiff, but an examination of these discloses that the substance of such instructions was given by the court on its own motion.
Under the circumstances presented by the record, we
We find no error in the record. The judgment is
Affirmed.
