15 N.W.2d 317 | Neb. | 1944
This is an action to recover judgment on a promissory note. At the close of plaintiff’s case in chief, the trial court dismissed the action as to the defendant, Clyde A. Linch. Plaintiff appeals from that decision. The appeal presents the question as to whether or not the trial court erred in sustaining objections of the defendant, Clyde A. Linch, to offers of proof made by the plaintiff. We affirm the judgment of the trial court.
The petition herein was filed June 16, 1942. Plaintiff, in the caption of his petition named the defendants as “W. R. Linch and Clyde A. Linch, partners doing business under the firm name and style of Linch Brothers.” In the body of the petition, plaintiff alleg-ed that on or about April 2, 1934, “the defendants, W. R. Linch and Clyde A. Linch, partners doing business under the firm name and style of Linch Brothers, for a valuable consideration” made and delivered to plaintiff their promissory note for $4,000, payable Séptember 1, 1934, bearing 6 per cent interest; attached a copy of the note to the petition showing that it was signed “W. R. Linch” and “Clyde A. Linch”; alleged a payment of $12.70 on June 25, 1937; alleged the amount due and prayed for judgment “against the defendants.”
The defendant, Clyde A. Linch, answered separately, denied generally and pleaded the bar of the statute of limita
The action went to trial, each defendant being represented by separate counsel. At the close of plaintiff’s case in chief, the defendant, Clyde A. Linch, moved that the action be dismissed as to him for insufficiency of the evidence to sustain a judgment against him, and for the further reason that the evidence showed that the statute of limitations had run on the note as against him. The trial court sustained the motion and dismissed the action as to the defendant, Clyde A. Linch. From that order of dismissal, plaintiff appeals.
It appears from the plaintiff’s evidence, which was admitted, that on or about April 2, 1934, the defendant, W. R. Linch, tendered to the plaintiff the note here involved, bearing only the signature of W. R. Linch. Plaintiff refused to accept it, and said: “there would have to be another signer.” Defendant, W. R. Linch, said: “Alright I can get Clyde, my brother.” Some two or three weeks later, the note was tendered to plaintiff with the signature of Clyde A. Linch thereon, and plaintiff accepted it. Thereafter, a short time prior to June 25, 1937, plaintiff bought some lightning* rod' wire from the defendant, W. R. Linch. Plaintiff returned unused wire on June 25 and inquired about the price of that which he had used. Defendant, W. R. Linch, figured the value of that used at $12.70 and directed that credit be placed on the note for that amount. Plaintiff thereafter on that day endorsed the payment on the note. Plaintiff further testified that at different times W. R. Linch admitted liability on the note, asked that suit be not brought, etc. Plaintiff testified that he did not know the defendant, Clyde A. Linch, and that Clyde A. Linch was not present at any of the conversations had with W. R. Linch.
Plaintiff, in his brief here, states the rule to be that a payment by one of two joint makers will not toll the statute against the other, unless the payment was made with' his knowledge, consent and acquiescence; unless the one
On the first proposition, his assignment of error is that the court erred in not receiving evidence that the endorsement was made on the note with the knowledge, consent and approval of Clyde A. Linch, and by him ratified and authorized. The evidence of plaintiff’s witness was that when the defendant, W. R. Linch, had told plaintiff to put the amount of the wire “on the back of the note,” that plaintiff asked “about the other signature,” and W. R. Linch said “it was alright, he would agree to it.” This was stricken as hearsay as to defendant, Clyde A. Linch. Clyde A. Linch was not present. Obviously the ruling was correct, and just as obviously the evidence, had it been received, would not have bound the defendant, Clyde A. Linch, either to the effect that the payment was made with his knowledge, or that he ratified and approved it. The rule is: “Partial payments made without the authority or consent of a surety or joint obligor do not toll the statute of limitations as to such surety or joint obligor.” Rawleigh Co. v. Smith, 142 Neb. 529, 9 N. W. 2d 286.
Plaintiff next argues that where there is a partnership, there is an agency, and hence that his “problem was not to prove agency, but to prove that the defendants were partners. If they were partners, then the payment by one tolls the statute as to the other.” To prove partnership, plaintiff made a series of offers of proof, to all of which the trial court sustained objections. Plaintiff’s assignments of error go to the rejection of his own evidence upon which he made these separate offers of proof. It is plaintiff’s contention that had the evidence been received, it would have shown that the liability of Clyde A. Linch was that of a partner of W. R. Linch and, accordingly, that the payment of W. R. Linch bound the defendant, Clyde A. Linch, and tolled the statute as to him. He further assigns as error the dismissal of the action as to Clyde A. Linch. The answer to the last assignment depends upon whether or not the court erred in excluding the proffered evidence.
Defendant in his brief first submits that the trial court ruled properly on the offers on the ground that the preliminary foundation questions as to knowledge of the witness, etc., were not asked, and further contends that had the offered testimony been received, he would still be entitled to have the cause dismissed as to him. To meet the first contention, plaintiff moved here that the record be returned to the trial court and for a diminution of the record to show that preliminary to the trial, a conference was had in the judge’s chambers between the court and counsel, wherein the court announced his opinion that evidence of partnership was not admissible under the pleadings. Plaintiff then advised that he would make an offer of' proof and that “an arrangement was entered into by counsel whereby the offers of proof should be made in the absence of the jury and that it would not be necessary to place witnesses on the stand in the presence of the jury and ask the preliminary questionsand that “the arrangement itself related to all the questions which were asked concerning the matter of co-partnership and as to the capacity in which the appellee, Clyde A. Linch, signed the instrument.” We do not need to determine here the question of the right of an appellant, at this stage of the proceedings, to have the record amended in the manner indicated. We have examined each of the several offers made, and assuming, but not deciding, that evidence of partnership was admissible under the pleadings, and, disregarding the foundation question, find that the trial court did not err in his rulings thereon.
The offers of proof made were blanket offers, each reciting a series of statements. They will be summarized as made. Plaintiff’s first offer of proof was that upon numerous and diverse occasions prior and subsequent to 1937, he discussed this note with defendant, W. R. Linch, when
Plaintiff’s second offer was to prove by plaintiff that pri- or to April 12, 1934, he had purchased from a bank a real estate mortgag-e on land in Deuel county; that shortly prior to April 2, 1942, (sic) W. R. Linch, defendant, came to him and stated that he and his brother Clyde desired to acquire the mortgage; that they desired to use the proceeds in their business and that he would give plaintiff a note signed by W. R. Linch and Clyde Linch for $4,000, due September 1st after date; that the note was better security than what he already had; that the land was worth less than the note and mortgage which plaintiff held and, “relying upon that representation,” W. R. Linch brought the plaintiff the note in suit, signed by W. R. Linch and Clyde A. Linch; and that upon delivery of the note plaintiff “made an assignment to W. R. Linch of his note and mortgage upon the real estate” mentioned. (Emphasis supplied.) To this the defendant, Clyde A. Linch, objected as incompetent, irrelevant and immaterial, and especially so as there was no issue as to
Plaintiff then followed this ruling with the statement that the offer was not made for the purpose of explaining the consideration, but for the purpose of “proving that Clyde Linch and W. R. Linch received the consideration for this note and that the same was delivered to them and used by them in their business, for the purpose of supplying the foundation of partnership, whereby the subsequent payment made by Ray Linch upon this note would be applicable to Clyde Linch, and to show the relationship between the parties.” This was objected to by Clyde Linch as “incompetent, irrelevant and immaterial; not within” the pleadings and hearsay.” The offer at most recited. (assuming the date of 1942 to be erroneous) the- inducements that W. R. Linch offered to secure an assignment to himself. The “purpose,” as explained by counsel, was to show that the two defendants “received the consideration for this note.” The declared purpose goes to matters not contained in the offer and contrary thereto. The offer itself showed that the assignment was made to W. R. Linch; there was nothing in the offer to show that W. R. Linch and Clyde Linch had a “business,” or that the note secured by the mortgage was delivered to and used by them in their business. There was no reference to a partnership in the offer, nor offer to connect with evidence of a partnership. We see no error in the trial court’s ruling.
Plaintiff next offered to prove that “contemporaneously, and as a part of this same transaction,” there was one “by W. R. Linch with one John Sunderman” for a note and mortgage on this same land; and that W. R. Linch told plaintiff he was “making the same arrangement” with Sunderman; that “he was supplying Mr. Sunderman a note signed by himself'and his brother, Clyde,” and Sunderman was assigning “to him” his note and mortgage, and plaintiff stated that if Sunderman agreed to it, he was willing also. This offer was made for the “purpose of throwing light upon the relationship of the parties to this transaction.”
Plaintiff then offered to prove that both mortgages were assigned to W. R. Linch, and “thereafter W. R. Linch had his brother Harry B. Linch negotiate” a federal farm mortgage on the real estate, and that the money realized from the new loan “was received by W. R. Linch and Clyde Linch.” To this the defendant, Clyde A. Linch, objected “as incompetent, irrelevant and immaterial.” It is an offer to prove that a third party negotiated a new loan on the Deuel county land, and that Clyde A. Linch and W. R. Linch received the money realized from the new loan. We see no error in the trial court’s ruling.
Plaintiff next offered to prove that the money received from the new loan “which the defendants were able to make” by reason of the fact that “they had received an assignment” of the notes and mortgages of Meyer and Sunderman, was expended and used “in their partnership business, business of a joint nature, to the extent of $4407.20,” and that W. R. Linch and Clyde A. Linch each received $409.65 in addition. To this the defendant, Clyde A. Linch, objected on the ground that the offer assumed a partnership relation, of which there was no proof, and that the offer did not in any way tend to establish the conclusions contained in the offer, and the purported facts stated in the offer were incompetent, irrelevant and immaterial. The trial court sustained the objection and we think properly so. The previous offer was that the defendant, W. R. Linch, had a brother Harry negotiate the new loan. No evidence of a “partnership business” involving Clyde A. Linch had been received, and none offered.
Plaintiff then offered to prove that on the date of the
Plaintiff next offered to prove that “on the date the note was signed, and on the date when the endorsement was made that W. R. Linch and Clyde Linch were engaged in the business of operating real estate and lands,” participating in the profits and losses; and on various occasions had stated openly and publicly that they were partners; “and that they operated lands and other investments together in the name of W. R. Linch and Clyde Linch, co-partners. That they received the consideration arising out of this note as such partners.” (Emphasis suppliéd.) The trial court sustained an objection to this offer, and we think properly so. This offer does not go to show that the note here in suit was a partnership obligation. In fact, the only inference possible from plaintiff’s own testimony given on direct examination is that defendant, Clyde A. Linch, signed because plaintiff required two. signatures. The offer does not purport to show that these two defendants owned the land upon which the federal farm mortgage was given, either individually or as partners. From the briefs we gather that it was owned by Harry B. Linch. The offer does not go to show that the plaintiff accepted the note in suit as a
. The note in suit on its face was the individual obligation of the defendants. The presumption is that it was the individual contract of the defendants. This presumption is. strengthened by the fact that plaintiff offered toi prove that the defendants were partners operating lands and other investments “in the name of W. R. Linch and Clyde Linch, co-partners.” To hold the defendant, Clyde A. Linch, liable as a partner, it is not sufficient to show that a partnership existed between the defendants. It must be further shown that the consideration of the note was advanced to the partnership, and the note accepted on the credit of the partnership. If the basis for holding the defendants liable as partners is that they held themselves out as such, then it was incumbent upon the plaintiff to show that he relied upon such holding out in accepting the note. Blue Valley
Under these circumstances, should the record be amended as asked by plaintiff, it would avail him nothing. The motion accordingly is overruled.
The judgment of the trial court is affirmed.
Affirmed.