113 Neb. 168 | Neb. | 1925
Action by August F. Witte against John J. Broz and Adela Broz upon a promissory note for $3,000, dated June 16, 1920, due March 1, 1921, executed by defendants to one B. R. Hendrix, acting for the “Realty Investment & Holding Company, a corporation,” in, connection with a contract for the sale of a farm of 160 acres to defendants by said corporation. Two other notes of the same date and maturity for $3,000 and $4,000, respectively, were executed in the same connection. Hendrix had no interest in, the notes and immediately indorsed them to the corporation. Plaintiff purchased the note in question from the corporation July 6, 1920, for full value, and claims to have made
This is the second appearance of this case in this court, the decision on the former appeal being found in 111 Neb. 76, in which a verdict and judgment against the indorser was set aside and action dismissed as to the indorser for want of due presentment of the note, and verdict and judgment against the plaintiff reversed for want of sufficient evidence to impeach the good faith of plaintiff in the purchase of the note. It was there held, rightly as we think, and is therefore the law of the case, that, under the issues as presented, evidence of fraud in the original transaction was competent, and, if established, we held in Lahrman v. Bauman, 76 Neb. 846, that the burden of proof is upon the. plaintiff to show that he is a bona fide holder.
The evidence upon the question of fraud is quite fully set forth in the former opinion and was substantially the same on the second trial, and will not here be repeated. Suffice it to say that it was amply sufficient, to support the findings of the two juries of the existence of fraud, or that the notes were executed upon condition, which leaves but one question for decision on this appeal as to the facts, viz., whether the evidence is sufficient to support the finding of the jury against the plaintiff. Some questions of law
The evidence presented by plaintiff as to the facts and circumstances connected with his purchase of the note in question are set forth in detail in, the former opinion, to which we refer as a correct summary of that produced at the second trial, and dismiss the consideration thereof with the remark that it seems on its face to satisfy all the requirements of the statutes and law relating to bona fide ■ purchasers of negotiable instruments, and would require a finding for the plaintiff unless impeached by other evidence sufficient in law to warrant contrary inferences.
Upon the first trial the evidence of plaintiff’s bad faith was very meager, that principally relied upon by defendants being an admission or statement by plaintiff, positively denied by him, that plaintiff was “Hendrix’s partner.”’ It is stated in the opinion that “there is further evidence which is material as bearing upon the question whether Witte is a holder for value,” but the same is not referred to in detail, and, as stated, we held it was insufficient to sustain a finding of bad faith. Upon the second trial further evidence on this branch of the case was received, which we will now detail.
The defendant John J. Broz testifies that on February 28, 1921, Hendrix came to his house, unbuttoned his over-1 coat, and said, “See, I have got your notes right in my pocket here and I will make you pay for them,” and that he saw the notes in his pocket. Adolph Pivonka, who was. cashier of the bank at Swanton and one of the agents of Hendrix in negotiating the contract of sale with Broz, and whose bank purchased one of the notes through Hendrix,, testified that on July 16, 1920, ten days after the alleged purchase by plaintiff, Hendrix had the note in suit and the $4,000 note in his possession at the bank trying to sell them to the bank or have the bank dispose of them to its customers, and that the note in suit did not at that time bear the indorsement from the corporation to Witte; that again,, on November 18, 1920, Hendrix asked witness to buy or
Joseph P'ivonka, father of Adolph and step-brother of Adela, testifies that on March 1, 1921, he saw the note in question and the two other notes lying on a table in the back room of the bank when only Hendrix and his son Adolph and himself were present. The testimony of these facts was not produced upon the first trial. It was directly disputed on rebuttal by Hendrix who testified positively that he had never had possession of the note in suit since its transfer to plaintiff, nor the other $3,000 note since its sale to the bank, July 16, 1920, nor the $4,000 note since its sale to the Nebraska State Bank, according to his testimony, on November 30, 1920. The plaintiff testified that the note in suit had never been out of his possession, that he had never given it back to Hendrix for any purpose, that it was in his pocket at the Swanton bank on March 1, 1921, and never shown to anyone or laid on the table. And witness Coe of the Nebraska State Bank testified that the $4,000 note had never been out of the possession of the bank or given to Hendrix after its purchase, and that no action had been taken for the collection of the note, although it was three years past due. The second trial was had in March, 1924.
A sharp conflict is thus disclosed in the evidence upon the pivotal question of fact in the case. If the jury believed the testimony for the plaintiff, it should have found in his favor; on the other hand, if they believed the evidence for the defendant, and the same is material, it is sufficient to support the verdict..
It is earnestly contended by the plaintiff that the new testimony received at the second tfial and above detailed is immaterial and adds nothing to the case made by the defendants on the first trial; but it seems to us that the facts, if found by the jury, that the note in question was in the
A great many objections were made to the introduction of testimony at the trial, most of them being directed against the evidence tending to establish fraud in the original transaction; these have been disposed of by the law of the case, as above stated. We have examined all the other objections of this nature and find no error in the rulings of the court. We have also considered objections urged to the instructions of the court, but find them without error.
Also' plaintiff urges that the court erred in refusing certain instructions offered by him. With two exceptions the principles of law stated in those requests were covered by the charge of the court on its own motion. The first exception is the fifth request, whereby the plaintiff asked the
The judgment of the district court is
Affirmed.