Low v. Warden

Belcher, C. C. The plaintiff commenced this action to recover the amount due on a promissory note, which was executed by the defendant, and was made payable to D. Low and Brother, or order. The complaint alleged • that at the time the note was executed the plaintiff and his brother, Edward Low, were partners, doing business under the firm name of D. Low and Brother, and that before the commencement of the action the note was sold, assigned, indorsed, and transferred by the payees thereof to the plaintiff. The answer denied the alleged sale, indorsement, and transfer of the note, and alleged that it [96]had been fully paid by the defendant. The case was tried before a jury, and the verdict and judgment were in favor of the plaintiff. The defendant moved for a new trial, and his motion being denied, appealed from the judgment and order.

In its first instruction the court told the jury that "by the pleadings defendant admits that he made a note to the plaintiff and his brother, Edward Low,” etc. This language is claimed by appellant to be outside of the issues in the case and to be erroneous, because the allegation of the complaint, which was not denied, was, that the note was made to the plaintiff and his brother as partners, and not as individuals. There is nothing in this point, for conceding all that is claimed, the error, if any, was immaterial and harmless.

In the fourth instruction the court told the jury, in substance, that if before the commencement of the action the plaintiff, with the consent of his brother Edward, wrote across the back of the note “D. Low and Brother,” with the intent to assign the same to himself, that this constituted a sufficient assignment and indorsement of the note, and he thereupon became the owner and holder thereof. We see no error in this instruction. It did not take from the jury the question as to whether the note was in fact assigned and delivered to plaintiff or not, but simply stated to them concisely the law applicable to the facts proved.

The fifth instruction is in these words: “If you find that the instructions from the plaintiff to the bank were to renew or collect the note before maturity, then I charge you any agreement the president of the bank may have made for extension of time to the defendant was not as agent for plaintiff, and was not binding upon plaintiff, and that plaintiff could, notwithstanding, at any time before the actual payment of the note to him or to his credit in the bank, commence an action against the defendant on the note.”