93 Neb. 51 | Neb. | 1913
This case is before the court on a third appeal. As was stated in Piper v. Neylon, 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 an
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 tend
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
Affirmed.