52 Neb. 469 | Neb. | 1897
This action was brought by Bound against the Winside State Bant to recover for the refusal of the bank to transfer to Bound certain promissory notes amounting to $3,044.85, and' made by William McKinsey, the plaintiff alleging that the bank had by contract in writing agreed to sell said notes to plaintiff in consideration, of $1,000, which the plaintiff had paid. The bank, by its answer, denied the contract sued upon, and alleged that the money had been paid in pursuance of a contract different in character and not embracing the notes. The plaintiff, a,s the result of a jury trial, had judgment, which the defendant by these proceedings seeks to review.
Several assignments of error relate to the admission of a certain class of evidence affecting the amount of damages. While these assignments are not so specific as they should be, they nevertheless leave no doubt as to what group of rulings is attacked, and while they are directed to a group, all the rulings within that group are alike in character, so that if one is bad they all are. We think, therefore, that the admissibility of the evidence complained of is fairly presented by the assignments.
The plaintiff was permitted to testify that he had heard a man say that he would give fifty cents on the dollar for the notes in question. He further testified that he heard this statement several days before he bought the notes, and in cross-examination it developed that the statement was made by McKinsey’s brother at a time when McKinsey was under arrest upon a charge growing out of the transaction of which the notes formed a part. The brother had further stated that his object was to secure McKinsey’s liberation. AU this evidence was received
As the case must be remanded to the district court for a new trial it is not inappropriate to now indicate our views upon another question presented by the record but not properly preserved for review because of a grouping in the motion for a new trial of certain correct instructions with that relating to the question referred to. The court told the jury, in effect, that in case it found for the plaintiff his measure of damages would be the value of the notes, but not less than the amount plaintiff had paid therefor, with interest from the time of payment. We think the latter part of this instruction was erroneous
Reversed and remanded.