DocketNumber: No. 17,244
Citation Numbers: 94 Neb. 561
Judges: Fawcett, Litton, Rose, Sedgwick
Filed Date: 10/31/1913
Status: Precedential
Modified Date: 7/20/2022
From a judgment of the district court for Douglas county upon a verdict directed for plaintiff, in an action on a promissory note, defendant appeals.
The note in suit was dated February 12, 1909, payable six months after date to the order of Courtney & Company, for $5,000, with interest at 6-J per cent., signed, “Toll Hanson, Chas. R. Courtney,” and the collection of same guaranteed by the written indorsement of the payee, Courtney & Company. The answer alleges, substantially: First. That the money which it is claimed constituted the consideration for the note in suit was loaned to A. E. Tun-berg prior to the execution of the note in suit; that plaintiff loaned the money to Timberg, and that that loan was the consideration for Tunberg’s note, and is the identical money for which the plaintiff seeks to.recover, all of which was well known to plaintiff; that the bank then had existing loans to Tunberg in amount of 20 per cent, of its capital stock and surplus, and, for the purpose of avoiding the hanking laws, the note in suit was executed and deposited with plaintiff hank with full knowledge of all the
Defendant’s brief contains no formal assigmnents of error, and argues but two points: That the record presents a “question of fact for submission to the juryand, the “law applicable.” The former of these two propositions is all that need be considered, as the “law applicable” to a question of that kind is too well settled to require citation or consideration of authorities. If the case presents sufficient evidence to have sustained a verdict in favor of the defendant, if one had been returned, or is not sufficient to sustain the judgment directed for plaintiff, then in either case the judgment must be reversed. Otherwise, it must be affirmed.
The rule is well settled in this state that a trial court is not required to submit a case to the jury, unless the evidence supporting it is of such a character that it would warrant the jury in basing a verdict upon it. Chicago, R. I. & P. R. Co. v. Sporer, 69 Neb. 8; Iowa Hog & Cattle Powder Co. v. Ford, 87 Neb. 708. This rule applies as well to a defense tendered by answer as to a cause of action tendered in a petition. The execution and delivery of the note being admitted, is there sufficient evidence in the record to have sustained a 'verdict for defendant, had the case been submitted to the jury and such a verdict re-turned? In First Nat. Bank v. Smith, 57 Neb. 454, we held: “Where the conclusion reached by the jury was the only one permissible under the evidence, the judgment
A careful examination of the abstract and supplemental abstract, we think, shows, without room for reasonable disagreement, or inference to the contrary, the following facts: Plaintiff is a banking corporation located at Hooper, Nebraska. One A. E. Tunberg was a business man at Hooper and a patron of plaintiff bank. Tolf Hanson was engaged in the restaurant business in Omaha. Charles R. Courtney was a member of Courtney & Company, and. the manager of its grocery business in Omaha. Hanson was a stockholder in the company, and, as stated by Mr. Courtney, was considered as Courtney & Company’s best customer. Tunberg and Hanson were cousins. They were both born at the same place in Sweden, and were acquainted before they came to the United States. In 1908 Hanson had become seriously involved financially, so much so that his credit with the Omaha banks had been exhausted. Courtney was his best friend. Tunberg was his cousin. Both were men of financial standing and credit, and to them he appealed for assistance in his extremity. In response to a request from Hanson, Tunberg made a trip to Omaha. Hanson’s necessities were discussed. Upon being interrogated by Mr. Tunberg as to the sum required, Hanson stated that he needed $10,000. Mr. Tunberg was unable to supply the money. After considering the matter in an effort to devise some plan by which the money might be obtained, Tunberg signed a note, dated October 1, 1908, for $10,000, payable one year after date, to the order of Hanson, with interest at 6 per cent., and Hanson gave, him in exchange therefor his note for a like amount. Hanson then tried, unsuccessfully, to discount the note he had received from Tunberg at the First National Bank in Omaha. Having failed there,
In the light of these facts, defendant’s contention is not sound that Tunberg was acting as the agent of the bank in obtaining the note from Hanson and Courtney, indorsed by Courtney & Company, in order to enable the bank to make an excess loan to Tunberg. On the contrary, there is no room for doubt that Tunberg was acting as the agent of Hanson, with the full knowledge and concurrence of Courtney, in an endeavor to obtain money for Hanson to help him in his hour of need. The bank knew that this money was being obtained for Hanson. It was unwilling to make any further loan to Tunberg, or to even accept him as an indorser, not because it did not believe he was solvent, but because it had already made him loans, personally, substantially up to its limit. The bank knew that it was making the loan to Hanson, and it wanted Hanson’s note, with what it considered a good signer with him. It did not desire, and evidently did not think it needed, the indorsement of Mr. Tunberg. The transaction on the part of the plaintiff seems to have been a perfectly straightforward business transaction.
' But, it is said by defendant that the note, so far as Courtney was concerned, was without consideration, for the reason that Hanson had already obtained the money, and that when the bank parted with the $5,000 to Tun-berg, and took his note, it was a closed transaction, and therefore the note, so far as Courtney is concerned, is without consideration. This theory is not borne out by the testimony of even Mr. Courtney himself. As shown in the supplemental abstract, he testified that he signed the note payable to the order of Tunberg, on the day it bears date, in Hanson’s office; that Hanson told him that Tunberg had the $5,000; that he said: “Alex got the money, but we have got to sign a note. You will do it, won’t you?” He admits that at that time he saw the draft, or the paper purporting to be the draft. . He testified that that was the time when Tunberg said he owed
In the light of these facts, no verdict could have been permitted to stand other than the one which the trial court directed.
Affirmed.