Doolittle v. Wheeler , 18 Neb. 136 ( 1885 )

Maxwell, J.

On the 19th of October, 1878, the defendant executed and delivered to the plaintiff his promissory note for the sum of $250, due January 22d, 1879, payable at the Commercial Bank of Brooklyn. There is an indorsement thereon made by the plaintiff of the sum of $113, October 19th, 1879. The plaintiff brought an action on this note to recover the balance claimed to be due thereon. The defendant in his answer admits the execution of the note, but alleges that he paid the same by executing, on the 22d day of January, 1879, a note in lieu of the one sued on, which second note he has since paid. On the trial of the cause in the court below a jury was waived and the cause •submitted to the court, which found the issues in favor of the defendant, and dismissed the action.

The principal question in issue is, whether the note alleged to have been made January 22d, 1879, in lieu of that of October 19th, 1878, was in fact executed. Upon this point there is direct conflict in the testimony, some of the defendants swearing positively that such a note was ■executed, and has since been paid, while the plaintiff denies that it was ever executed, the evidence being nearly evenly balanced'. In such cases the finding of the court below will be. upheld. A number of technical objections are made to certain evidence introduced on the trial, which do not affect the real merits of the controversy. There is no error in the record, and the judgment is affirmed.

Judgment affirmed.

'The other judges concur.