69 Neb. 312 | Neb. | 1903
This case originated in the county court, by the filing of five promissory notes as a claim against the estate of John Fitzgerald, deceased, by Smith H. Mallory, whom we. shall hereafter call the plaintiff. The notes, by their terms, .are payable on demand, and bear date of January 16, July 30, September 25, November 22 and November 23, 1888, respectively. The maker of the notes, at the respective dates thereof, and thereafter, to the date of his death, namely, December 30, 1894, was a resident of this state. The administratrix of the estate, whom we shall hereafter call the defendant, filed an answer to the claim
In the district court, to avoid the bar of the statute of limitations, the plaintiff alleged in his petition that, notwithstanding the dates borne by the several notes, they were all executed and delivered at the same time; that soon after they were executed and delivered, it was agreed between the maker of the notes and the plaintiff, that demand of payment of the notes should not be made, until about the 11th day of April, 1896, and that the time of payment thereof, and the interest thereon, should be extended until the maker should recover judgment in ,a certain action and receive certain money which he claimed to be due him from a third party; that the plaintiff should not sell, transfer or hypothecate the notes, and that the notes should draw seven per cent, interest instead of ten, the rate provided by the terms of the notes; that the maker of the notes did not recover the judgment and receive the money from the third party, which by the terms of the agreement fixed the time for the payment of the notes, until about the 11th day of April, 1896.
At the close of the testimony the court directed a verdict for the defendant, and gave judgment accordingly. The plaintiff brings error.
A considerable portion of the argument is directed to the question, whether the matter pleaded by the plaintiff ■, in the district court, in avoidance of the statute of limita
But the plaintiff’s theory appears to be, that the oral agreement was subsequent and not contemporaneous. The evidence, heretofore recited, does not sustain that theory. It is true, the notes were signed and delivered to the cashier of the bank in the forenoon, but that of itself did not make them a contract between the parties. So far as appears from the evidence, the delivery of the notes by the maker to the cashier of the bank, in the forenoon, was no more than an offer on the part of the former, which the plaintiff might or might not accept; unless accepted as made, it was no contract. That it was not thus accepted, is conclusively shown by the subsequent acts of the parties in relation thereto, when the alleged oral agreement was made. It was not until the terms of that agreement had been settled that the notes were finally accepted by the' plaintiff, and the contract evidenced thereby perfected by their delivery to him. That being-true, the oral agreement and the notes were contemporaneous, and evidence of the former was clearly inadmissible. Waddle v. Owen, supra. Such evidence being( inadmissible, and having been received over the defendant’s objection, the court could rightfully exclude it, so far as the plaintiff is concerned, at any stage of the case, or disregard it entirely, as it did, in this case,- by directing a verdict for the plaintiff.
As regards the agreement of the maker of the notes to waive the statute of limitations, without going into the validity of such agreement, it will suffice' to say, it was not pleaded in the county court. It has been repeatedly held by this court that, on appeal to the district court, the parties" must confine themselves to substantially the same issues as those upon which the cause was submitted to the court below. Western Cornice & Mfg. Works v. Meyer, 55 Neb. 443. Besides; no such agreement was pleaded in the district court. Th'e evidence of this part of the agreement, like that of the other parts of it, was
It appears, therefore, that there was no showing of anything that would remove the bar of the statute of limitations. That being true, the court properly directed a verdict for the defendant.
It is recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.