43 Neb. 157 | Neb. | 1895
This was an action in the district court of Otoe county on a promissory note for $250 executed by the defendant in error and John C. Calhoun to John F. Callen, bearing date of March 10, 1890, and maturing sixty days after date. The petition is in the usual form in actions by indorsees of commercial paper, except that it is therein alleged that the note was transferred to the plaintiff by the-payee for value before maturity in the usual course of business. The answer, after a denial of the transfer and the plaintiff’s title to the note, contains the following allegation: “Defendant, further answering, avers that he is only a surety on said note and so signed the same, and the plaintiff had knowledge of this fact. Plaintiff has brought no-one into court but this answering defendant; that said note was given by John C. Calhoun to one John F. Callen for a half interest in a certain advertising contract in Nebraska and Iowa; that said Callen represented to said John C. Calhoun that he understood the business and would devote his time and best efforts to make the' same a success ; that he had made large money in other similar contracts and would show said John C. Calhoun how to conduct and
The district court, on its own motion, gave the following instruction, which is now alleged as error: “You are instructed that plaintiff having alleged in her petition that defendant made, executed, and delivered the promissory note in question to John C. Calhoun, for value received, and that afterwards said Callen, before maturity of said note, that is, before the same became due and payable, sold and assigned, transferred, and duly indorsed the same to plaintiff for value received, and the defendant, among other matters of defense, having denied that John F. Callen for
2. From a careful reading of the proofs in the record we are constrained to add that in our judgment the verdict should have been set aside for another reason, viz., that the finding of the jury is so manifestly against the evidence as to call for interference by the court. The plaintiff, who was at the time in question an unmarried woman, possessed of money for investment, and living in the family of the payee, Callen, in the city of Omaha, testified that she purchased the note in controversy on or about the day of its date for $225. She is fully corroborated by Callen, who
We are likewise unable to perceive any substantial basis for the finding of a failure of consideration of the note. The inducements which led to the abandonment of the advertising scheme by John C. Calhoun, the principal of the note, are clearly set forth in the following communication, of which he is the admitted author:
“Lincoln, Neb., April 13, 1890.
“J. F. Callen, Esq., Omaha, Neb. — Friend J. F.: The contents of this will doubtless surprise you. Have decided to give up the adv. business. Have been offered a good position — salary and expenses — and have accepted it to-day. Had a letter from Mandell in which he says they will do no advertising. I hoped to get on my feet through the Newcastle ad., but now that that has fallen through, I mu.-t take another means, and that means is something for which I am better adapted than for soliciting ads. I am .no advertising man and never will be one, and you have been very kind to coach me this far. Address me Swedeburg, Neb. Hold until called for.
“Yours in haste, Jack.”
That letter was the deliberate act of the writer, and is. unmistakable evidence of the fact that he voluntarily abandoned the advertising venture for what was believed to be a more lucrative and congenial occupation. Being the first to violate the contract, he cannot, while in default of the
Reversed.