Piper v. Neylon, No. 17,803

No. 17,803 | Neb. | Jan 31, 1913

Barnes, J.

This case is before the court on a third appeal. As was stated in Piper v. Neylon, 88 Neb. 253" court="Neb." date_filed="1911-01-09" href="https://app.midpage.ai/document/piper-v-neylon-6659470?utm_source=webapp" opinion_id="6659470">88 Neb. 253: “This is a suit on a promissory note for $700 dated December 26, 1901, and due July 1, 1903. The petition contains a copy of the note, and in substance states: It was executed by John Neylon, defendant, and was delivered to Lee Parker, payee, from whom Johji F. Piper, plaintiff, purchased it before maturity for value in the regular course of business, without notice of any equities between the maker and the payee. It Avas indorsed ‘Lee Parker, without recourse,’ May 1, 1903,. and delivered to plaintiff the same day. After maturity it was placed with the Farmers Bank of Lyons and the First National Bank of Lincoln for collection. Upon defendant’s failure to make payment, the note was returned to plaintiff. Defendant in his answer admitted the execution of the note, but stated that it was given in payment .of a worthless stallion, which defendant, by false and fraudulent representations of Parker, was induced to buy for breeding purposes alone. The answer further alleges: ‘The plaintiff is not an innocent purchaser and bona fide holder of said note, having had at all times full notice and knowledge of the equities between the parties and of the terms of the said sale, and of the representations inducing the same, and that, as defendant is informed and believes, he is not, in fact, the owner of said note, 'but merely a cover and shield for the said Lee Parker in his attempt to collect the same.’ The reply was a general denial. A judgment in favor of defendant was reversed here on a former appeal. Piper v. Neylon, 81 Neb. 481" court="Neb." date_filed="1908-04-23" href="https://app.midpage.ai/document/piper-v-neylon-6657929?utm_source=webapp" opinion_id="6657929">81 Neb. 481. The case was retried, and at the second trial defendant again prevailed.” On appeal that judgment was reversed for the refusal of the trial court to direct the jury to return a verdict for the plaintiff. On the third trial the district court directed such a verdict, and from a judgment thereon the defendant has prosecuted this appeal.

Defendant contends that the trial court erred in excluding certain evidence from the consideration of the jury. The competency and materiality of all of this evidence was considered upon the last appeal, and it was held that it should have been excluded. We adhere to what was said in that opinion, and defendant’s contention on that point must fail.

It is also argued that the court erred in sustaining a motion to strike out the indorsement found on the back of the note in question. It is a sufficient answer to this argument that the indorsement was held by our former opinion to have been improperly received in evidence.

It is further contended that the plaintiff was not an innocent purchaser of the note: First, because he obtained it at a discount; second, it is claimed that he heard the representations as to the quality of the horse at the time of the sale; and, third, that there is testimony tending to show that lie was once the owner of the horse. The evidence on the first two points above mentioned was before this court on the last appeal, where it was held that the trial court should have instructed the jury to return a verdict for the plaintiff. Upon the first proposition it may be said, however, that the fact that plaintiff purchased the note in controversy for less than its face value would not prevent his recovery as a bona fide holder. Cannon v. Canfield, 11 Neb. 506" court="Neb." date_filed="1881-07-15" href="https://app.midpage.ai/document/cannon-v-canfield-6643286?utm_source=webapp" opinion_id="6643286">11 Neb. 506; Citizens Bank v. Ryman, 12 Neb. 541" court="Neb." date_filed="1882-01-15" href="https://app.midpage.ai/document/citizens-bank-v-ryman-6643531?utm_source=webapp" opinion_id="6643531">12 Neb. 541. In Bully v. Goldsmith, 32 Iowa 397" court="Iowa" date_filed="1871-10-05" href="https://app.midpage.ai/document/sully-v-goldsmith-7095018?utm_source=webapp" opinion_id="7095018">32 Ia. 397, it was shown that the plaintiff bought the note in question for two-thirds of its value. There was a verdict for the defendant, and the supreme court of Iowa reversed the judgment and set aside the verdict. It appears in the instant case that plaintiff received the note from Parker as part payment for a house, and there was nothing in the transaction tending to show a want of bona fides on his part.

Finally, it is conceded in appellant’s brief that the only evidence in this record that was not before the court on the former appeal is a statement that plaintiff was once the owner of the horse in question. Neylon testified that Piper said to a stranger in Neylon’s barn that he once owned the horse. This was denied by Piper. That fact, however, if true, is immaterial, and would not require the trial court to submit the question of the bona fides of plaintiff’s purchase of the note to the jury. It must be observed that neither the time when plaintiff is alleged to have owned the horse, nor Iioav long he owned him, if at all, was stated; and nothing was shoAvn inconsistent with the fact that, if lie owned the horse at all, it Avas when he was a mere colt and his qualities could not have been known. To entitle the defendant to a submission of his case to the jury, it Avas necessary for him to show to the court that the testimony in question would have a material bearing upon the question of the good faith of the plaintiff’s purchase of the note.

As we view the record, it contains no additional evidence which would entitle the defendant to a submission of his case to-the jury. It follows that the district court did not err in directing the jury to return a verdict for the plaintiff, and the judgment of the district court is

Affirmed.