Plaintiff brought this action on a promissory note and recovered a judgment against appellant Greenlee as maker, and against defendant Closman as indorser. Greenlee appeals.
The petition alleges that, December .12, 1912, Closman executed and delivered t.o plaintiff his promissory note for the sum of $1,000 and, as collateral security therefor, indorsed and delivered the note in suit to plaintiff; that the Closman note and the note in. suit were both due and unpaid. Judgment was entered against Closman by default.- Defendant Greenlee answered, admitting the execution and delivery of the note by him to Closman and alleged in substance that the note was nonnegotiable and that the consideration therefor had failed. The answer contains a number of allegations calculated to show the transaction between Greenlee and Closman, but their redial is unnecessary for a determination of this case. A jury was waived and the cause tried to the court.
Defendant offered to introduce evidence to show the agreement between the maker and the payee of the note and their understanding of the paper. This evidence was excluded, and. the rulings of the court are assigned as error. As the controlling question is the negotiability of the paper as it appears on its face, it is unnecessary to discuss rulings on the admission ‘or exclusion of evidence. The note was written on a standard printed form and reads as follows:,
“1,000. Sidney, Nebr., Dee. 9th, 1912.
“One year after date I promise to pay to the order of L. F. Closman only one thousand & no/100 Dollars at Sidney, Nebr., with interest at eight per cent, per annum from date.
Value received.- A. K. Greenlee;”
*182The date line is written with a pen; the words “one year” and the personal pronoun “I” are written, in the second line, with a pen; “L. F. Closman only,” on the third line, js written with a pen; ‘ ‘ one thousand & no/100,” in the fourth line, is written with a pen; “Sidney, Nebr., with interest at eight per cent, per annum from date” is written with a pen, as is also the signature “A. K. Greenlee.” All other parts are printed, including the words “pay to the order of.”
There is an apparent conflict between the printed words “pay to the order of,” preceding the name of the payee, and the written word “only” following the name , of the payee. .
Section 5335, Rev. St. 1913, provides: “Where there is a conflict between the written and printed provisions of the instrument, the written provisions prevail.” To give full effect to this provision of the statute, the word “only,” written with a pen, must be held to prevail over the printed words “pay to the order of.” The negotiability of the instrument was restricted by the written word “only,” and the plaintiff took the note subject to any defense the maker might have if it,were in the hands of the original payee.
Appellant claims that under the pleadings and proof the judgment ought to be reversed and dismissed. We do not care to go so far as this. The negotiability of the note was somewhat clouded by the form of answer filed, and was not presented to the trial court,.either by the answer or by 'the motion for a new trial, in the clear and concise language the question might have been presented. The answer may have misled the trial court, as well as attorneys for the plaintiff, and the admissions in the reply on which appellant now relies for a dismissal of the case may have been inserted because of the peculiar form of the answer. The indorsement and delivery of the note by Closman to plaintiff constituted an assignment thereof to plaintiff. As to *183appellant Greenlee, the judgment is .reversed and the cause remanded for further proceedings.
Reversed.