85 Neb. 718 | Neb. | 1910
The plaintiff, who the appellant here, commenced this action in the district court for Holt county to recover a balance due upon a negotiable promissory note, executed and delivered on the 8th day of July, 1903, by the defendants to McLaughlin Brothers, for the sum of $1,000, with interest at 6 per cent, per annum, payable on the 1st day of July, 1905. The petition is in the usual form, and alleges that the plaintiff purchased the note in due course of business, before due, for a valuable consideration, and without notice of any defense thereto, and was at the time of the commencement of this action the owner and holder thereof. All of the defendants except Gill Brothers answered plaintiff’s petition by way of a general denial. The answer of the Gill Brothers, in addition to a general denial, alleged that proceedings in bankruptcy were pending against them in the district court of the United States for the district of Nebraska. There, was a proper reply, and upon the issues thus joined a trial was had to a jury. There was a verdict and judgment for the defendants, and plaintiff has appealed.
It appears that to maintain the issues on its part the plaintiff introduced the deposition of Robert McLaughlin, a member of the firm of McLaughlin Brothers, the payee named in the note. lie testified that the note was given
With the evidence in this condition, the district court instructed the jury as follows: “3. The jury are instructed that plaintiff sues these defendants to recover upon a promissory note, which he alleges they signed, and which the plaintiff alleges was in the following language, words and figures at the time defendants signed it, to wit: ‘$1,000. Stuart, Neb., July 8, 1903. On July 1, 1905, after date, for value received, we jointly and sev
It is contended that the court erred in giving this instruction; that while, under certain circumstances, such an instruction might be proper, yet, in view of the evidence and the issue as made by the pleadings in this case, it was reversible error to so instruct the jury. No objection was made to the introduction of the testimony of the defendants that the note in suit had been changed or'altered, as not being admissible under a general denial, and we have held that such evidence may be received under that issue, as we shall presently see. It is true that in McClintock v. State Bank, 52 Neb. 130, it was said: “Where the defense to a suit on a promissory note is that the same had been materially altered after its execution and delivery, the note itself not disclosing any evidence of such alteration, the burden of proof is upon the party alleging such alteration to establish the same by a preponderance of the evidence.” It appears, however, that the defendant in that case, by his answer, assumed the burden of proof by alleging a material alteration of the note as an affirmative defense. In Colby v. Foxworthy, 80 Neb. 239, defendant also assumed the burden of proof by alleging a material alteration of the instrument, so those cases do not sustain the plaintiff’s contention. On
It is also contended that the verdict is not sustained by the evidence. On the question of the material alteration of the note the evidence is conflicting, and whatever our opinion may be as to .the merits of controversy, we cannot, without violating a long-established and well-settled rule of this court, disturb the verdict of the jury.
For the foregoing reasons, the judgment of the district court is
Affirmed.