Home Savings Bank v. Shallenberger

Sedgwick, J.

This is the third time this case has been before this court. 82 Neb. 507; 95 Neb. 593. Twice the case was submitted to the jury, and the jury found in favor of the defendant. Upon this last trial the court, supposing it was following our former decision in this case, instructed the jury to- find for the plaintiff. The facts are sufficiently stated in the former opinions. The defendant has complieated the case somewhat by changing his position from time to time. He has filed at least four different answers.

The defendant now insists in the brief that there was sufficient evidence that Shelly-Rogers Company misrepresented matters to him when he signed the guaranty of payment of the note, so that that question should have been submitted to the jury. In the last of the former opinions in this case it was said that “the charge of fraud committed by the Shelly-Rogers Company was not sustained and it is unnecessary to inquire what effect proof of fraud on its part -would have upon the rights of plaintiff.” That is to say, Shelly-Rogers Company was offering to sell this note to the plaintiff bank, and the bank would not take the note unless this defendant would continue to guarantee the payment. Therefore Shelly-Rogers Company procured the defendant to guarantee the payment, and the bank then took the note. The opinion holds that the guaranty is an absolute one, and that it goes with the note, so that an innocent purchaser of the note would take it with the guaranty, and would not be responsible for the manner in which some prior owner of the note had procured the defendant to guarantee the note. This, by the former opinions, has become the law of the case. If this case is ever going to be ended, it will have to be done by the court, since the questions are questions of the law of negotiable paper with which the jury is not supposed to be familiar; It is clear that thisvbank purchased this note in the regular course of business, without notice of any defense, and relying upon the guaranty of the defendant, and under the law of the case as settled in our former decision is entitled to recover.

The trial court followed our decision, and its judgment is

Affirmed.