59 Neb. 23 | Neb. | 1899
At the J anuary term an opinion was filed affirming the judgment of the district court. See Zimmerman v. Kearney County Bank, 57 Nebr., 800, 78 N. W. Rep., 366. After-wards a rehearing was allowed and the cause again submitted. The insistence of defendant in the brief now before us is that we were wrong in holding that there was no error in the exclusion of evidence offered on the trial. It appears from the record that the plaintiff took the deposition of W. H. Paddock and read to the jury the examination in chief. This testimony was to the effect that the firm of Finch & Paddock had sold the note in suit to the plaintiff, and had no longer any interest therein, and that Rogers and Chapin, the president and cashier of the bank, had no knowledge at the time of the purchase that the note was usurious, or that there existed any other defense to its enforcement. On cross-examination Mr. Paddock testified as follows:
“Q. Now, Mr. Paddock, hadn’t you tried in person to collect this note in suit of the defendant since the time you claimed to have sold it?
“A. No, sir.
“Q. Didn’t you in the early part of September, 1893, in Holdrege, Neb., in front of the United States National Bank, ask Zimmerman for the money on this note and at that time state to him that you and Finch were still the owners of this note and that you knew defendant had sold a farm and had the money for it and demanded of him payment of this note?
“A. No, sir; I did not demand the money for the note, nor I didn’t tell him that Finch and Paddock owned it. I met Zimmerman in September, 1893, as stated, in front of the bank and asked him why he did not pay Rogers and Chapin this note. Jacob Zimmerman said to me that he had sold a farm and part of the money which he had received from the sale of the farm was in certificates of deposit in one of the banks in Kearney, Nebraska,*25 and the certificates were time certificates and could not get the money until they matured.
“Q. Mr. Paddock, didn’t you at the time of this conversation propose to Zimmerman, the defendant, that you would cash the time certificates and give him credit on the note?
“A. No, sir.
“Q. Now in this connection didn’t Zimmerman tell you that the Kearney County Bank claimed to own this note, and you answered that it did not, but that you owned it and you would cash those certificates and give him a receipt and have the amount credited on the note?
“A. No, sir; he did say the Kearney County Bank claimed to own the note, but I did not say that Finch and Paddock owned the note, or that we would cash these certificates and give him credit on the note.
tt # * * * *
“Q. Now, Mr. Paddock, didn’t you in September or October, 1892, and after you claimed to have sold this note to plaintiff, have a' conversation with the defendant Zimmerman in Minden, Nebraska, on the north side of the square near Thorne’s Block in which you 'told Zimmerman that Finch & Paddock, or we, referring to Finch & Paddock, owned this note in question?
“A. Never told Zimmerman after July 18, 1892, that we, or Finch & Paddock, owned the note in question in Minden or any other place.”
These questions and answers were offered by the defendant as part of Paddock’s testimony, but were, on plaintiff’s objection, excluded by the court. The defendant then offered to prove that Paddock had, at the times and places referred to in the foregoing questions, stated to Zimmerman that Finch & Paddock were the owners of the note; that it had not been sold to the bank, but was merely held by it for collection. These offers were rejected on thfe theory, as we understand it, that they were not admissible as original evidence for the defendant and were, therefore, not admissible for the purpose of im
Reversed and remanded.
I adhere to the former opinion in this case.