35 Neb. 648 | Neb. | 1892
Plaintiffs in error were engaged in business under the name of the Nebraska Manufacturing Company, and defendants in error were engaged in the banking business under the name and style of the Webster County Bank. On the 15th day of December, 1884, the firm of Schunk & Mouser, composed of J. Schunk and L. D. Mouser, was indebted to plaintiffs in1 error for goods, wares, and merchandise sold and delivered, to the amount of several hundred dollars, a part, of which indebtedness was evidenced by four promissory notes, and the balance was on
“Blub Hill, Neb., Dec.T5, 1884.
“ Webster Cownty Bcmh, Blue Hill, Neb.
“ Please pay to the Nebraska Manufacturing Co., of Lincoln, Nebraska, the amount we owe them, consisting of the following notes and book account, out of the first col-laterals you hold belonging to us, after the amount we owe you is paid. [Here follows a description of the four notes and the account.] Amounting in all with interest to about $598. Schunk & Mouser.
“ J. Schunk.
“ L. H. Mouser.
“Witness : E. L. Morse.”
Upon the face of said order is written the following acceptance: “December 15, 1884. Accepted. Webster Co. Bank, E. L. Morse, Asst. Cashier.”
Action was brought in the court below upon said acceptance, the plaintiffs alleging that at the time of the giving of said order and the acceptance thereof, defendants had in their possession and under their control a large number of notes, accounts, and securities belonging to the firm of Schunk & Mouser, which were held by the bank as collateral security for money due from said firm to the defendants; that said indebtedness to said bank has since been paid, and that defendants have in their possession a large amount of notes, accounts, and securitiesbelon ging to said Schunk & Mouser, over and above the indebtedness of said firm to the bank. The prayer is for judgment for $498 and interest. The answer to the petition is, in effect, a general denial. There was a trial to the court, with finding and judgment for the defendants.
The cause is submitted to this court upon the record and bill of exceptions, without either brief or oral argument to aid us in reaching a proper conclusion. This court is bur
The first assignment in the petition in error, that the judgment is not sustained by sufficient evidence, must be overruled. The order directing the bank to pay the indebtedness of the drawers to plaintiffs was conditional and not absolute. It was to be paid out of the first moneys arising from the collection of the collaterals held by the bank belonging to the drawers after their indebtedness to the bank was liquidated. There is not a syllable of testimony tending to show that any sum has been paid upon the collaterals in excess of the claim of the bank, for the payment of which they were held as security. Clearly such proof was necessary to establish the liability of the-defendants. By their acceptance of the order they only agreed to pay the amount collected by them in excess of the sum due them from the drawers. Not only is there a failure of proof, but the petition fails to state a cause of action, in that it contains no averment that anything has been collected upon the collaterals by the bank in excess of the amount due it from Schunk & Mouser..
Complaint is made because the court permitted defendants to prove that they held no collaterals belonging to the drawers of the order at the time the same was given, nor since. We think this testimony was inadmissible because it -tended to impeach or contradict the written order, by the acceptance of which defendants admitted that they held in their possession securities owned by Schunk & Mouser. They were estopped to deny the recitals in the order. While the testimony to which we have referred was im
The third ground in the petition in error is “ errors of law occurring at the trial duly excepted to.” This is. too general to be considered. It is a sufficient assignment in a motion for a new trial, because made so by statute, but. in a petition in error the grounds upon which it is asked that the judgment be reversed must be specifically stated. The judgment is clearly right and is
Affirmed.
