66 Neb. 60 | Neb. | 1902
This is an action brought in the district court for Douglas county by Walter L. Selby, defendant in error, against Burney J. Kendall, plaintiff in error, charging the latter as indorser upon four promissory notes of $600 each, made by Charles F. Mullen, December 11, 1890, payable to the Patrick Land Company, and by the land company indorsed and transferred to plaintiff in error, who afterwards, and before maturity, indorsed and transferred them to one James M. Woods; said notes being finally transferred by indorsement to defendant in error, Selby. An answer was filed, admitting the execution and, delivery of the notes, and their indorsement by plaintiff in error, and denying each and every other allegation of the petition; and in addition pleading that at the time of the
The contention of plaintiff in error that the notes sued upon are non-negotiable is based upon certain provisions found in both the notes and mortgages. The notes upon which suit is brought are alike in form, one of which is as follows:
“Omaha, Rebe., December 11, 1890.
“On the 11th day of December, 1893, for value received, I promise to pay to the Patrick Land Company of Omaha, or order, the sum of six hundred dollars, with interest thereon from date, payable as shown and represented by interest coupons hereto attached; and if any interest coupon is not paid when due, then the whole of this note shall immediately become due, and may be collected by suit at any time; and if this note is not paid when due either by maturity or by reason of failure to comply with the terms of the mortgage -given to secure the same, which is made a part hereof, or by. default in the payment of any interest coupon, then the same shall bear interest at the rate of ten per cent, per annum. Principal and interest payable at the office of the Patrick Land Company at Omaha. Lot 10* block 103, Dundee Place, Omaha, Nebraska.
“[Signed.] Chaeles F. Mullen.”
In Garnett v. Meyers, 65 Nebr., 280, this court said: “A note, and mortgage securing it, made contemporaneously, are to be construed together as to all persons chargeable with notice of their contents and their, relation to each other.” In the note quoted above is a provision making the mortgage a part of the note,, so that the payee and indorsers of the note are chargeable with notice of all conditions contained in the mortgage.
Regarding the first contention, it may be said that this is a provision relating alone to the security for the debt, and simply requires the mortgagor to do what he would be bound to do in the absence of a condition, and provides that on his failure to pay the taxes, the holder of the mortgage may pay the same, and recover interest on such payment at the rate of-ten per cent. This provision in no way tends to render the amount due on the note uncertain, and therefore does not affect the negotiability of the note.
In Stark v. Olsen, 44 Nebr., 646, this court passed upon a condition almost identical with the second one in the mortgage involved herein, and expressly held that such a provision did not make the maturity of the note uncertain, and therefore did not affect its negotiability.
The substance of the third condition quoted above is that on failure of the mortgagor to pay the indebtedness
It is next contended that no sufficient notice of dishonor was given to plaintiff in error. Upon this point the evidence in the record is conflicting. Defendant in error testifies positively that he had several conversations with plaintiff in error regarding the failure of the maker to pay the notes in question; that plaintiff in error asked that he be given additional time and not to crowd him for the payment. He also testified that the notes were duly protested for non-payment, and notice thereof given to plaintiff in error. All of this testimony is denied by plaintiff in error. This was a question for the determination of the trial court, and it having found against the contention of plaintiff in error, under the well-established rule in this state such finding will not be disturbed by this court if sustained by sufficient competent evidence, and this seems to be true of the finding under consideration.
The third contention is that the failure of the defendant in error to continue the prosecution of his foreclosure suit operated to discharge plaintiff in error from all liability on the notes. This contention seems to be wholly unsupported by authority and is without merit.
The final contention of plaintiff in error is that the trial court erred in striking from his answer the para
From an examination of the entire record, it is apparent that no error has been committed by the trial court, and it is therefore recommended that the judgment be affirmed.
Affirmed.