96 Neb. 228 | Neb. | 1914
The petition counts in the usual form on a promissory note, dated January 30, 1906, for $240, executed by defendants E. D. and Mary C. Wenner. The answer alleges that the petition does not state a cause of action; that defendants have for more than ten years been husband and wife; and that defendant Mary 'CL Wenner was never indebted to plaintiff in any amount whatever. The reply admits that the defendants are husband and wife, and alleges that defendant E. D. Wenner, while a single man, borrowed from plaintiff’s mother $1,000, to be used for making payment for the quarter section of land “now occupied by defendants;” that prior to the date of the note plaintiff, through the death of his mother, became the owner of a portion of the indebtedness; that at the time the note was given a large amount of interest had accumulated on the indebtedness; that it was agreed between the parties that all interest on the indebtedness should be waived and canceled, provided defendants would obligate'
In the single brief filed for both defendants, they argue that the undisputed evidence shows that the defendants are husband and wife; that the note sued upon was given for the debt of the husband; that there was no acknowledgment in .writing by the wife that the note was given for the benefit of her separate estate or business, or that she intended to bind her separate estate, or that for the payment thereof she did bind her separate estate; that the note was not given for the benefit of her separate estate; that the note was not given for necessaries for the family, or in connection with the defendant Mary C. Wenner’s separate estate, trade, business, lands or property. The evidence shows that the debt originated, as stated in the petition, in a loan made by plaintiff’s mother to defendant E. D. Wenner. Upon the death of the mother plaintiff became the owner of a portion of the indebtedness. Being desirous of collecting the amount due him he sent his brother-in-law, Henry Wenner, a brother of the defendant E. D. Wenner, to try and secure an adjustment of the matter. Henry met the defendant E. D. Wenner at a sale. After talking the matter over, they repaired to the home of the defendants, where the note was signed by both defendants. The testimony of Henry and the two defendants, as to the conversation and circumstances surrounding the execution of the note, is conflicting. At this time a considerable amount of interest had accumulated on the indebtedness. Henry testified that the three were
The simple question presented by the record is: Is the evidence sufficient to sustain the verdict and judgment which holds-Mrs. Wenner responsible on the note in suit? In Godfrey v. Megahan, 38 Neb. 748, we held: “Whether a contract of a married woman was made with' reference to her separate property, trade, or business, or upon the faith and credit thereof, and with intent on her part to
It is urged by defendant that “the court erred in admitting in evidence confidential communications and conversations between husband and wife.” The ground of this complaint is that, upon- cross-examination of Mrs. Wenner, counsel for plaintiff was permitted to ask her about a talk she had with her husband privately in an adjoining room, as to.which she was asked: “Q.. What did he tell you? A. He came in and told me Henry wanted me to-sign the note; that is what he told me. Q. What did you say? A. Well, I said I wouldn’t do it.” These questions were asked upon cross-examination, following and relating to testimony which had been drawn from her on direct examination, and were not improper.
The final complaint is that the judgment was erroneously-rendered against both defendants as principals. No exception as to the form of the judgment was taken at the time it was entered, nor, so far as the record shows, was any attempt ever made to correct it in the lower court.
Finding no error in the record, the judgment of the district court is
Affirmed.