Lexington Bank v. Phenix Insurance , 74 Neb. 548 ( 1905 )

Ames, C.

The Phenix Insurance Company recovered a judgment against John Everson, which was assigned by its attorneys without consideration, but for collection only, to the Lexington bank, and the assignment was afterwards ratified by the company. After the assignment, Everson sued the the bank upon a money demand for $800, and the bank pleaded set-offs, including the judgment, to the aggregate amount of about $1,000. The suit never came, to trial, but was settled and dismissed, and as a part of the settlement the bank satisfied and discharged of record the insurance company’s judgment. What specific gain or advantage the bank obtained in the settlement by reason of such discharge is not shown by the evidence, and as to whether Everson was at the time pecuniarily responsible there is some conflict; but we think the latter question is immaterial. In the absence of evidence, an agent for collection who cancels the obligation of tbe debtor must be presumed to have done so in consideration of tbe face amount of tbe claim. This is an action by tbe insurance company against tbe bank to recover tbe amount of tbe judgment and interest. There is a conflict in tbe evidence as to whether tbe judgment was purchased and owned by tbe bank, or assigned to it for collection as alleged in tbe petition, but tbe jury determined this and all other issues in favor of tbe plaintiff, and returned a verdict accordingly, upon which a judgment was rendered, which this proceeding is prosecuted to reverse.

Tbe plaintiff in error complains of the action of tbe court in tbe giving and refusal of instructions, but tbe main contention of counsel is that tbe verdict is unsupported by evidence. We are not only not able to agree with him, but are of opinion that it is tbe only verdict which tbe evidence would bave supported, and that errors in instructions, if there are any, were without prejudice.

We therefore recommend that tbe judgment of tbe district court be affirmed.

Letton and Oldham, CC., concur.

By tbe Court: For tbe reasons stated in tbe foregoing opinion, it is ordered that tbe judgment of tbe district court be

Affirmed.