57 Neb. 519 | Neb. | 1899
The Illinois Trust & Savings Bank brought this suit in the district court of Saline county against George M. Murphey upon a promissory note given by Murphey to the bank which upon its face purports to have been given for the rent of certain elevators. At the close of the evidence the jury, in obedience to an instruction of the district court, returned a verdict for the plaintiff, upon which the court entered a judgment, to review which Murphey has filed here a petition in error.
1. Murphey, to the action of the bank, interposed four defenses, though the same are not so separately stated and numbered in his answer. The first defense was that there was a want of consideration for the note sued upon. In support of this defense Murpliey’s evidence showed that in 1891 N. H. Warren & Co., an Illinois copartnership, owned some elevators at Crete, Dorchester, and Friend, Nebraska, and he entered into an agreement with this copartnership in and by which it furnished him these elevators. 1-Ie put in $15,000 in money, took possession of them, and operated them in the buying and shipping of grain until August, 1894; that some time in 1891, at the request of Warren & Co., he executed his note for some $2,400 to the bank; that in 1892 he executed another note to the bank for about $8,000, and in 1893 executed to the bank the note in suit; that he executed these notes to the bank at the request of Warren & Co., because that copartnership ivas indebted to the bank; fliat he executed all these notes to the bank in pursuance of an agreement between hinlself and Warren & Co. that
2. A second defense of Murphey’s was that he was induced to execute all three of the notes mentioned by certain false and fraudulent representations made by one Gallop, alleged by Murphey to be the joint agent of Warren & Co. and the bank. The false representation which Murphey alleges Gallop made was that Warren & Co. were financially solvent, when as a matter of fact they were insolvent. Murphey’s evidence completely failed to support this defense. In the first place Gallop was the general managing agent of Warren & Co. He was not the agent of the bank, except that the latter .sent him out to Nebraska, to have- Murphey execute the note in suit; but as such agent of the bank he had neither express nor ostensible authority to make any representation as to the financial condition of Warren & Co. Furthermore, Murphey says he knew at the time he executed these notes that Warren & Co. were in financial straits; that they owed a great deal more than they were able to pay, — from all of which it is evident that Murphey did not rely upon any representation made, by Gallop as to the financial responsibility of Warren & Co., even if Gallop was the agent of the bank and invested with authority to make such representations.
3. A third defense was in the nature of a counter-claim. Murphey sought to recover a judgment against the bank for all the moneys which he had paid out on all three of
4. A fourth defense interposed by Murphey was also in the nature of a counter-claim. He alleged that during the time he' was in possession of these elevators he had made certain repairs upon them; that the repairs were necessary to the elevators; that the bank had received the benefit of the repairs and improvements made, and that such improvements were reasonably worth a certain sum. There are three views which may be taken of this defense: If the bank is to be regarded as the owner and Murphey the tenant of this property after February 26, 1894, at which time it is said the bank became the owner of the property, then to hold the bank liable for repairs made upon the leased premises by Murphey it is necessary for him to plead and prove an express contract, since the bank as landlord was not bound, in the absence of an express contract, to repair the leased premises itself, nor to pay for repairs made by its tenant. (Turner v. Townsend, 42 Neb. 376.) Murphey did not plead nor prove an express contract on the part of the bank to pay for any improvements put upon the property by him. If the bank, by purchasing this property from Warren & Co., became liable to carry out the contract existing between Murphey and Warren & Co., then the bank’s liability and its rights as the representative of Warren & Co. were measured by the written contract existing between Murphey and Warren & Co., and this written contract does not bind Warren & Co. to keep the elevators in repair, nor to pay for improvements which Murphey might make thereon. But Murphey alleges that the contract between him and Warren & Co., by which the latter were to keep the elevators in repair and to make the necessary improvements thereon, rested in parol. But if this were so, the bank, by purchasing the property from
Affirmed.
