35 Neb. 651 | Neb. | 1892
This is an action to recover of the defendant in error the amount of a promissory note for the sum of $120, which it is alleged he executed at Columbus, this state, on the 26 th day of October, 1887, payable to the order of Cole, Grant & Co. one year after date, with interest at ten per cent, and indorsed by the payees to the plaintiff before maturity.
The answer sets up the illiteracy of the defendant, want of consideration, and that the note was procured by fraud and circumvention practiced upon him «by the agent of Cole, Grant & Co. The reply denies the allegations of the answer. The jury found for the defendant, and the plaintiff brings error.
On the trial the plaintiff introduced testimony tending to show that the defendant’s genuine signature is attached to the note and that plaintiff purchased it for value before maturity. He also introduced the instrument in evidence, and then rested his case. Thereupon the defendant introduced testimony to the effect that in October, 1881, he met in Columbus a person who represented himself to be the agent of Cole, Grant & Co. in the sale of a certain combition slat and wire fence; and that defendant was induced to and did consent to act as agent for said Cole, Grant & Co. in the sale of such fence in certain townships of Platte county. A commission contract, partly written and partly printed, constituting and appointing the defendant as such agent, was prepared by the agent of Cole, Grant & Co., which was signed by both parties. The defendant further testified that he signed his name but twice on that occasion, and he supposed he was signing duplicate contracts; that he is illiterate and unable to read English; that the stran
The plaintiff on rebuttal called as a witness one Gus Wilson, and propounded to him the following question:
Q. State if Mr. Willard applied to you, about the time this note was purchased by him, to ascertain if he knew anything about the genuineness of this signature before he purchased.
Objected to, as immaterial and not responsive to the is. sues, and not rebuttal. Sustained. Exception.
The plaintiff offered to prove by the witness that within four or five days after October 26, 1887, the plaintiff in the action, D. A. Willard, came to the witness at his bank in Genoa, Nebraska, and asked him concerning the note
The offered testimony was excluded, and, we think, rightly so, as it was clearly immaterial. The answer admitted the signature to the note, and the jury were so instructed. • Besides, it was not competent to prove what the witness said to plaintiff about the note before it was purchased, as such testimony had no bearing upon the issues in the case, and was hearsay.
Several exceptions were taken to the charge of the court as given, and the refusal to give instruction one, requested by the plaintiff. None of these are well taken. Counsel have not pointed out a single objection to the charge of the court, and we are unable to discover any error therein. •The instructions are in harmony with the authorities cited above, and the case went to the jury under a charge quite as favorable to the plaintiff as the case would warrant. The verdict has ample support in the evidence, and finding no error in the record the judgment of the district court is
Affirmed.