46 Neb. 776 | Neb. | 1896
The defendant in error instituted this action in the district court of Webster county to recover the amount of a promissory note which he alleged, in his petition filed in the cause, was executed by the plaintiffs in error as principal makers and he as their surety, and which he further stated the plaintiffs in error failed and refused to pay at its maturity, and he as surety then paid. He was successful in the district court in a trial to the judge and a jury, and the defeated parties have presented the case to this court for review of the proceedings therein.
It is urged on behalf of plaintiffs in error that the note was, as to them, without consideration and hence of no effect, also that the verdict was not sustained by the evidence. These two contentions we will notice together, as, from the nature of the case, as disclosed by the evidence, they are so closely connected that it seems proper to do so. It appears, as we gather the history of the transactions involved in the cause from the testimony introduced at the trial, that at some time (the exact date is not material to the issue) in the spring of 1888, Henry McCormal, father of plaintiffs in error, borrowed of the bank of Guide Rock, Nebraska, the sum of $325, as evidence of which he executed and delivered to the bank a promissory note, also signed by the defendant in error as surety. Before the maturity of this note Henry McCormal, the principal maker, died, and at the time the note became due demand was made of the defendant in error, the surety thereon, for its payment. Henry McCormal was, at the time of his death, the owner of a considerable estate, consisting of real and personal property, sub
It is argued that the trial court erred in giving instruction numbered 2 of the instructions given by the court on its own motion. The assignments in the motion for new trial and petition in error, in reference to the alleged error, were as follows: “ The court erred in giving instructions numbered 1 and 2 on its own motion.” It has been repeatedly held by this court that alleged errors in giving instructions should be separately assigned, or, if grouped, as in this case, and, by examination, any instruction of the group should be determined to be without error, the assignment would not be given further consideration. No. 1 of the instructions attacked by the assignment was entirely proper, and applying the rule above referred to, this contention will not be further noticed.
The last will and testament of Henry MeCormal, deceased, father of plaintiff's in error, was offered and admitted in evidence over the objection of their counsel, and this is assigned for error. The instrument admitted disclosed that the greater portion of his property, both lands and personal property, subject to the payment of his debts, was given to these two sons, and was material as tending to show the interest plaintiffs in error would have in the payment of this note held by the bank, which would be a claim against the estate they were to receive, and be deducted from it, and thus tended to establish the consideration which moved them to sign the note in suit. Agreeably with this view of the will as evidence, there was no error in its admission. It is also claimed that counsel for defendant in error, during the argument of the case, made use of some expressions in reference to plaintiffs in error which were uncalled for, not warranted by the testimony, and prejudicial to the
The jury returned into court with a verdict, in which the amount allowed defendant in error was $347.50, “with ten per cent interest per annum, less $32 already paid by the defendant.” This verdict was not accepted by the court, and the jury were directed to retire to the jury room and “bring in another verdict.” These are the words used in the portion of the direction to the jury in relation to the verdict, as appears from the record. We presume the jury were told to reform the verdict by computing any interest to be allowed and add it to the principal, for this is what was done, as is apparent from the verdict which was delivered when the jury again came into the room, the amount assessed in favor of defendant in error, as then stated, being $456. The only error which we can discover in this portion of the proceedings is in the amount allowed the defendant in error. The jury did not deduct the payment of $32 and calculated the interest on the sum paid by the defendant in error at ten per cent per annum, instead of seven per cent, the proper per centum of interest. Treating the $32 paid after the time of payment of the note by defendant in error as a payment on the interest properly allowable, the defendant in error was given a verdict for the sum of $42.03 in excess of the amount to which he was entitled. Defendant in error will have leave to file a remittitur for the sum indicated, $42.03, within forty days, and if he does
Judgment accordingly.