103 Neb. 490 | Neb. | 1919
After the judgment had been entered, the motion for rehearing was argued before the court.
1. The point most discussed in the brief is the contention that the cashier of the bank did not have authority as such cashier to make the contract alleged as a defense in the answer and testified to by the defendant. If the contract was made as the defendant testified, it must be considered as a whole. We- cannot hold it valid in part and invalid in part. It included the cancelation of the note given by the deceased, and extending the time for payment of the same. If the cashier did not have power to make the contract, then these provisions would of course fall with the rest of the contract. In that case there would be no consideration for the defendant’s note, and the bank should have disregarded the invalid contract of the cashier, and filed its claim against the estate.
2. The brief also strenuously argues that the evidence was not sufficient to support the verdict of the jury as to the cause of action on the principal note. When the note of the deceased became due, the cashier, Bennett, notified this defendant, the widow, of that fact. She called immediately, and, according to his testimony, she stated that she did not know that there was such a note against the deceased and asked him what she should do. He had drawn the will of the deceased; had been their family adviser in business matters for several years; and, according to his own testimony.- the suggestion came from him that she give her note, and the note of the deceased be canceled. Why he made that suggestion is not apparent. The estate was abundantly good; the note of the deceased was drawing interest at a good rate; he says the bank had money to loan and did not care about getting the money. All they had to do was to file the note, if it was valid against the estate, and it would be allowed with interest; and yet he suggested to her to have that
3. The motion attacks instruction No. 1 given by the court. It presents two objections to this instruction: The first is predicated upon the assumption that the cashier did not have authority to do what he did, which has already been answered. The second objection to this instruction is that it is not complete enough, and it is not contended in the briefs that any more complete instruction was offered.
Our judgment reverses the finding of the jury on the smaller claim, and directs judgment against the defend
The motion for rehearing is
Overruled.