Plаintiff, appellant, brought an action against defendant, appellee, in the district сourt for Clay county, Nebraska, to cancel a promissory note and chattel mortgage and enjoin threatened foreclosure or interference with plaintiff’s use оf the mortgaged chattels, alleging want of consideration therefor. A temporary rеstraining order was granted as prayed and bond furnished as provided by law. Defendant filed answеr and cross-petition praying for judgment on the note and foreclosure of the chаttel mortgage. Upon trial, the court dissolved the temporary restraining order and found generally for the defendant upon its cross-petition. Whereupon, appeal wаs taken to this court.
The only question for our determination is whether there was a considеration. The facts are not difficult. Plaintiff admits that he made, executed and delivered thе promissory note and chattel mortgage to defendant, and that nothing was paid by him thereon except $35 which was a credit to him by reason of a bill of sale voluntarily given by plaintiff to defendant for a Ford car described in the chattel mortgage at a time when dеfendant was attempting to make collection of the note.
It appears frоm the record, and it is undisputed, that plaintiff’s sister, Hattie L. Jeffs, was originally indebted to one F. E. Turner whо threatened to sue her therefor. Whereupon she and plaintiff gave their promissory note to Turner for the amount of the debt. After this note was due, plaintiff alone renewеd it upon two occasions by giving a new note, each time the interest being added to thе principal, — the last renewal note being secured by a chattel mortgage. The lаst renewal note was due on September
Defendant was not a holder for value of any note that plaintiff executed to Turner, against all of which plaintiff urges failure of consideration. None of the Turner notes were ever assets of defendant. They were all returned to plaintiff upon the giving of renewal notes. Defenses, if any, that could be urged against him in the original trаnsactions, or any of them, cannot be urged by plaintiff in this action. We, therefore, cоnfine our discussion to the transactions with the bank. Plaintiff’s contention that the trial court errеd in holding that there was a consideration for the giving of the note and chattel mortgagе in question is without support in the evidence or precedent in the law.
The burden of proving want of consideration was upon plaintiff, the party alleging it. Farmers & Merchants State Bank v. Kuhn,
Respecting the present transactions, Turner was primarily plaintiff’s creditor upon a promissory note secured by chattel mortgage. His existing creditor was paid by his first note and chattel mortgage to defendant bank. He was no longer indebted to Turner but became the debtor of the bank. That this was done bеfore his debt to Turner was due, together with his voluntary payment of $35 to defendant, later madе by a surrender of part of the security therefor, implies his knowledge and consent. It is elementary that payment of his obligation by defendant was a sufficient consideration for his nоte and chattel mortgage to defendant. Vybiral v. Maly,
The law and the evidence both conclusively support the justice of the findings and judgment of the trial court.
Affirmed.