45 Neb. 7 | Neb. | 1895
This was an action by the plaintiff in error, the Peoria Manufacturing Company (hereafter called the “ Manufacturing Company”), against E. P. Lawrence, E. S. Hawley, and E. T. Huff on their joint promissory note for $2,000, dated January 22, 1891, due sixty days after date. The plaintiff recovered in the district court for Lancaster county against Lawrence, but there was a verdict and judgment therein in favor of the other defendants, from which both Lawrence and the Manufacturing Company have prosecuted a proceeding by petition in error to this court.
It is shown by the evidence that on and prior to the 22d day of January, 1891, said implement company, of which the defendants below were officers, said Lawrence being the president and general manager, was indebted to the plaintiff in the sum of $2,000, represented by a note of that amount, maturing on the day last mentioned. The plaintiff having been advised by the implement company through its president, Mr. Lawrence, that it would be unable to-
We will first consider the questions presented by the petition in error of the Manufacturing Company, which requires an examination of the evidence so far as it relates to the defendants severally. Mr. Huff testified in his own behalf that Lawrence and Davis, the plaintiff’s agent, visited him at his office for the purpose of having him sign the note which had been previously executed by both the other makers and which Lawrence said was an accommodation note for the Manufacturing Company. Referring to his conversation with Davis on that occasion he testified as follows:
Q. For what purpose did he want it [the note] ?
A. Accommodation paper to help themselves out.
Q. To help themselves out? '
A. To help themselves out in credit I suppose.
Q. At that time were you personally indebted to the Peoria Manufacturing Company ?
A. No.
Q. On his representation did you sign it ?
A. I did.
Q. What else, if anything ? That the Peoria Manufacturing Company would take care of the note?
A. Yes, sir; he represented that they would; that it would cost me nothing, but would help them out.
Q. Do you mean the note sued on in this case?
And on cross-examination he testified :
Q, Do you know whether the Peoria Manufacturing Company was insisting upon payment or security for money owing to it by the Lawrence Implement Company ?
A. I do not.
He is contradicted by Mr. Davis, who testified that the consideration for the note was the extension allowed on the past due paper of the implement company. The claim of the defendants may to us seem unreasonable, but the evidence adduced in support thereof appeal’s to have satisfied the jury that the note was given solely for the accommodation of the plaintiff. An accommodation note or bill, within the meaning of the law merchant, is one made or accepted not upon a consideration, but for the purpose of enabling the payee or holder to obtain credit. (Pollard v. Huff, 44 Neb., 892, and authorities cited.) The facts, as testified to by the defendant, bring the transaction clearly within the foregoing definition, and it was the province of the jury to determine the question of his credibility as a witness, and their finding, bearing as it does the approval of the trial judge, should not be disturbed in this proceeding.
It is also alleged that the court erred in admitting the record and files in the action of this plaintiff against the implement company, showing the order for the sale, in satisfaction of the judgment therein, of a large amount of property, real and personal. It is not contended that the judgment in that case is of itself a defense to this action, and no such claim was made at the trial before the district court. , The record appears to have been admitted upon the theory that the prosecution to judgment of an action on the note of the implement company was a circumstance tending to support the claim that said note was received by the plaintiff in satisfaction of the note in suit. But assuming its ádmission to be error, we cannot on the record before us
We will now examine the evidence upon which the judgment as to Hawley rests. His version of the transaction appears from his direct examination as follows:
Q,. Where were you when you signed that note?'
A. I think I was at the Lincoln Hotel.
Q. Were you indebted at the time you signed that note to the Peoria Manufacturing Company?
A. No, sir.
Q. State how you happened to sign it.
A. Mr. Lawrence brought the note to me and said that Mr. Davis wanted it signed by the individual members. (Objection. Overruled. . Exception.) Mr. Lawrence brought the note over to me and said Mr. Davis wanted it signed up by himself, Mr. Huff, and myself. I objected to signing the note. I did not see any necessity of putting the individual names to any note, and he said it would be an accommodation to Mr. Davis, and would give us no trouble. They could use it in that shape and could not use the company’s name.
Q. Did you afterwards see Mr. Davis?
A. I saw Mr. Davis at the hotel.
Q. Was anything further said at that time?
A. I don’t think there was anything further said about the note.
The foregoing evidence does not bring the witness within the rule stated, or entitle him to the protection of an accommodation maker. Comment upon the candid testi
We come now to a consideration of the judgment in favor of the Manufacturing Company against Lawrence. There can be no doubt from the evidence in the record, including the written correspondence conducted by said defendant relating to the note maturing January 22, 1891, that the note in suit was intended as an extension of the indebtedness represented by the note first mentioned, and that the relation of the defendant named to the plaintiff is that of a surety for the implement company.
There are other allegations of error which relate to rulings during the course of trial, but they do not require further notice, for the reason that they could not have prejudiced the rights of the defendant, since, as we have seen, the court might properly have directed a verdict against him upon his own evidence.
Judgment affirmed as to defendant in error Huff and plaintiff in error Lawrence, and reversed as to defendant in error Hawley.
Judgment accordingly.