55 Neb. 188 | Neb. | 1898
This action was begun in tbe county court of Douglas county, from which court, by appeal, it was taken to the district court, in which there was a trial without a jury and a finding and judgment in favor of the defendant. The recovery was sought by plaintiff on a promissory note in these words and figures, to-wit:
“$322.04. , Omai-ia, Nebraska, August 13, 1890.
“On the 13th day of January, 1891, for value received, I promise to pay to the order of the Patrick Land Company of Omaha three hundred twenty-two and .04 dollars, at its office in Omaha, Nebraska, with interest from this date at the rate of eight per cent per annum, payable semi-annually. In case this note is not paid at maturity, it shall bear interest at the rate of ten per cent per an-num until paid. Henry W. Pennock.”
With respect- to the renewal notes, of which that in suit was one, defendant in his answer alleged that at the time of making such renewals the Patrick Land Company entered into further and renewed agreements that a street car service from the center of the city, operated by electricity, would be provided by said company during the coming fall; that said service would be a continuous street railway sendee from the center of the city of Omaha through Dundee Place near the lots of defendant — the cars to run at intervals of not to exceed fifteen minutes until 10 o’clock at night'; that the note sued on was given in renewal of said former notes upon such express agreement and representation of said company, and without such agreement and representation defendant- would not have renewed the former notes then past due and in the hands of the company. It was alleged in the answer that there had been no compliance by the Patrick Land Company with said agreement and representations, by reason whereof defendant had suffered damage in the sum of $1,500. There were other
Q. What was the inducement to you to secure the renewal of former notes, the note in suit being one of such renewal notes?
A. I would not have made this renewal — would not have given this note in renewal of notes then past due unless Mr. Allen and Mr. Kurtz, as officers of the company, had then agreed to — I have previously stated what the agreement was — I wish to refer to the former agreement now — unless Mr. Allen had made statements to me which I have outlined in my testimony before this, relative to the extension of the street car service to Dundee within the coming fall of 1890.
The conversation above alluded to had previously been thus described in the testimony of the defendant:
Before executing this last note which was to take the place and be in renewal of those other notes I have mentioned I went to the office of the Patrick Land Company and had several conversations with Mr. Allen, who was then the vice-president, and Mr. Kurtz, who was the secretary at that time, in regard to Dundee Place. At that time Mr. Allen informed me that he wished that I would take up these notes past due, and I complained that the company had not fulfilled its agreement to give us rapid transportation, and that it had been impossible for me to sell the lots and that I was unable to meet the notes;
Q. What was then done about giving a renewal of the notes?
A. I said to' him, with that understanding, I would give him new notes for the old ones and place the paper in better-shape for the company.
By the testimony of defendant it was disclosed that in the latter part of the year 1888 he had purchased nine lots in Dundee Place from the Patrick Land Company for $9,200, of which some amount, not stated, was paid in cash, and, for the balance, notes were given secured. by mortgages on the lots purchased; that without the improvements agreed to be made these lots were worth in 1890, $500 each, or $4,500 in all, and that in the years 1888, 1889, and 1890 a great many lots in Dundee Place were sold at prices ranging from $1,000 to $1,250 each. By his answer the defendant admitted that in December, 1888, he sold five of the nine lots bought by him of the Patrick Land Company, but there is no showing in the record
But was there such an existing equity or defense, at the time this note was transferred, that defendant can now avail himself of it to defeat a recovery on the note? The agreement or representation, as it is called, which the defendant seeks to avail himself of, was in no sense a representation of an existing fact. There is a class of cases with which this should not be confounded. Illustrations of this class are found in the sales of machines accompanied by warranties that such machines will do good work. This does not amount to a- promise of the vendor to do anything in the future, but it is a representation that the construction is such that, on trial, the machines will be found to operate in the manner described. In the case under consideration it is even doubtful whether the promisor could be said to have undertaken anything more than to procure the Farnam street
Another line of cases holds that where parties have
Reversed and remanded.