DocketNumber: No. 21746
Citation Numbers: 108 Neb. 644
Judges: Day, Dean, Letton, Sears, Westover
Filed Date: 5/17/1922
Status: Precedential
Modified Date: 9/9/2022
This is an action brought by appellant, hereafter called plaintiff, to recover on a promissory note for $72. The plaintiff claims that it purchased the note in due course, before maturity, for value, and without notice of any defense thereto.
The defendant for answer denies the allegations of the
The case was tried to a jury, and the jury returned the following verdict: “We, the jury duly impaneled and sworn in the above' entitled cause, do find for the defendant, for the iollowing reasons: That upon inquiry by the defendant, that he was led to believe that said note was not in possession of said bank and that he was not notified of same until several months past maturity, also that the defendant had not received value as represented. Dated this 28th day of April, 1920. Hayes W. LeFever, Foreman.”
No objections were made to the form of the verdict at the time it was returned, and after the verdict was received without objection it was then too late to urge either upon the trial court or this court objections to the form of verdict. Roggenkamp v. Hargreaves, 39 Neb. 540; Brumback v. German Nat. Bank, 46 Neb. 540; Jones v. Driscoll, 46 Neb. 575.
A motion for a new trial was filed by plaintiff and overruled by the court, and judgment was entered on the verdict. In overruling the motion for a new trial and entering judgment on the verdict, the trial court undoubtedly disregarded the reasons for the verdict as stated therein, and rejected such reasons as surplusage, thus leaving the general verdict finding for defendant, upon which judgment was entered. In this we hold the trial court committed no error. In Hallett v. Ransom, 97 Neb. 643, it is said: “Where the verdict contains proper findings on the issuable facts submitted to the jury, clearly indicating the judgment which the law should pronounce, severable matter outside of the pleadings, the proof, the issues, the instructions and the law may be rejected as surplusage.” In State v. Beall, 48 Neb. 817, it is said: “A verdict which responds to all the issues made by the pleadings should not
Having held that the trial court properly disregarded the reasons assigned by the jury for their verdict as surplusage, it leaves a general verdict finding for the defendant. This verdict is responsive to the issues raised by the pleadings and the instructions given by the court; and from a careful review of the evidence in the case there is no doubt but the verdict is fully warranted by the evidence. But two witnesses testified in this case, the cashier of the plaintiff bank on one side and the defendant on the other. If the jury believed the defendant’s testimony, which it had a right to do, the verdict was right and is supported by sufficient evidence. The record discloses that there ^s doubt the note in question was procured originally by fraud and misrepresentations. The defendant testified to facts from which no other conclusion can be drawn, and there is nothing to the contrary in the record. Under these ■circumstances, the burden of proof was upon the plaintiff, and before it could recover it was required to satisfy the jury by a preponderance of the evidence that it purchased the note in good faith, in due course, and without notice of any defense thereto. From the evidence in the case.the jury were fully warranted in believing that the plaintiff had notice of the fraudulent character of the transactions leading up to the execution of the note.
There is no complaint made as to any instructions given by the court, and we find no error in the record, and the judgment is
Affirmed.