59 Neb. 535 | Neb. | 1900
This cause was before us at a former term. See Gaylord v. Nebraska Savings & Exchange Bank, 54 Nebr., 104. The action was instituted by Mary W. Gaylord to recover the value of a certain promissory note alleged to have been converted' by the bank. For a full statement of the facts reference is made to the former opinion filed herein. The last trial in the district court resulted- in a verdict and judgment against the defendant. Subsequently the plaintiff died, and the cause has been revived in the name of her executor.
The note in question was payable to Mary W. Gaylord, and when received by the bank bore this indorsement: “Pay to the order of Mary W. Gaylord.” On the former hearing it was determined that this did not constitute
It is insisted by the same counsel that the plaintiff is estopped from asserting any rights to the note against the bank by reason of the indorsement of the paper and sending it to her son. There is more than one ready answer to this contention. The issue of estoppel, and the evidence adduced bearing thereon were submitted to the jury under instructions as favorable as the bank had the right to demand, and 'the jury, upon ample evidence, found that issue in favor of plaintiff, which finding is conclusive on reveiw.
. The note and the assignment of the mortgage given to secure the same disclosed that the note and mortgage belonged to Mrs. Gaylord. The officers of the bank, as shown by their own testimony, were aware when they made the loan to Mrs. Gaylord that the assignment contained the name of no person as assignee; hence they were bound to know that she had not parted with her title to the note and mortgage. We passed upon a similar question in Folsom v. McCague, 29 Nebr., 124. There certain land contracts were signed by the owner in blank, the name of the assignee being omitted, and sent to a party in Omaha to be exchanged for city property,- who pledged them as collateral security; and it was urged therein that the owner was estopped from asserting title to the contracts. In the opinion in that case it was said: “The principle of estoppel is often applied in cases where the owner of property clothes another with the apparent right of ownership or absolute disposition, and such person sells or pledges the property to an innocent third person. We do not see how this principle can be in-
Paragraphs 4, 5, 6, 7 and 8 of the charge of the court are assailed. These instructions followed the former opinion in this case, which is conceded by counsel for
The court refused to give certain instructions tendered by the bank relative to a special agency. No such question was in the case. The bank did not receive the note from the firm of Muir & Gaylord, as agent of Mrs. Gay-lord, but as absolute owner of the paper.
It is finally argued that there was misconduct on the part of the attorney for plaintiff while making his closing argument to the jury. The alleged misconduct consisted in his commenting on matters not embraced in the record. The bill of exceptions reveals the fact that counsel for the bank was the first offender in that respect, and that the remarks of plaintiff’s attorney, of which complaint is made, were in reply thereto; and hence defendant can not be heard to complain. See Stratton v. Dole, 45 Nebr., 473. The judgment is
Affirmed.