Bliss v. Farmers Grain & Stock Co.

254 N.W. 725, 127 Neb. 147, 1934 Neb. LEXIS 23
CourtNebraska Supreme Court
DecidedMay 22, 1934
DocketNo. 28910
StatusPublished
Cited by4 cases

This text of 254 N.W. 725 (Bliss v. Farmers Grain & Stock Co.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bliss v. Farmers Grain & Stock Co., 254 N.W. 725, 127 Neb. 147, 1934 Neb. LEXIS 23 (Neb. 1934).

Opinion

Day, J.

This is an action to recover a balance due on three promissory notes which were the obligation of the Farmers Grain & Stock Company, a corporation, and indorsed by Frank A. Adelson, A. C. Jones, Charles W. Flick, and Adam Deuker. The plaintiff was the assignee of the notes after the failure of the bank, and the defense to the notes was that the defendants were accommodation indorsers, and, even if they were not, they were entitled to a set-off in the amount of their deposits in the insolvent state •bank. The trial court found that the individual defendants were ordinary indorsers and liable personally as such and entered a judgment against the Farmers Grain & Stock Company but found that Adelson, Jones, and Deuker were entitled to a set-off in the amount of their deposits.

The Farmers State Bank of Polk was adjudicated insolvent in May, 1929. In October the receiver filed an action on the notes against the defendants to recover thereon the balance due, approximately $2,500. Before the issues were made up, the receiver sold the notes, constituting the cause of action, to Josephine S. Warren, who made an application and secured an order from the trial court to be substituted for the receiver and to prosecute the action in the name of the receiver. An amended petition was filed to which the Farmers Grain & Stock Company made no answer. The defendants Adelson, Jones, [149]*149and Deuker admitted the making and delivery of the notes. The other indorser, Flick, was deceased. The defendants alleged as a defense that they were accommodation indorsers and that they signed merely as officers and directors of the Farmers Grain & Stock Company to authorize the loan by the bank.

The defendants also filed a cross-petition in which they allege that the Farmers Grain & Stock Company, Flick’s estate, and Farmers State Bank of Polk and the depositors’ guaranty fund were insolvent; that the receiver of the bank had sold all the assets or converted them into cash and paid a dividend of 25 per cent, on the claims of the depositors; that there was a small amount of money in the hands of the receiver, and the liabilities of stockholders of the bank were paid, but not more than 40 per cent, would be paid to depositors on their claims, and that the depositors’ guaranty fund law had been repealed. The defendants further alleged that each of them were depositors in the bank when it was adjudged insolvent. The deposits were: Deuker $18.91; Jones $112.49, and Adelson $10,370.49, and on which each of the defendants were allowed 25 per cent, dividend, and that Adelson had been paid $2,592.62, leaving him a balance due of $7,777.87 from the bank, and that Jones and Deuker had been allowed but not paid their 25 per cent, dividends. It was further alleged that Adelson filed a general claim with the receiver on which he had been allowed a general creditor’s claim in the sum of $5,152.50. The defendants alleged that they were entitled to have the balance on their claims as alleged set off as to any amount found due from the defendants on the note of the plaintiff and to have said notes canceled and discharged.

The plaintiff admitted in her answer to defendants’ cross-petition the allowance of the claims of defendants Jones, Deuker, and Adelson, as depositors; that the defendants had filed claims for the entire amount of their deposits, and that Adelson had been paid the dividend on his. As' further answer to defendants’ cross-petition, [150]*150plaintiff alleged that the defendants did not at the time of filing their claims for deposits with the receiver, or any time thereafter, ask to have their claims set off against what they owed the bank on the notes, but that they filed their claims and secured the allowance of the same for the full amount, and that Adelson received in dividend $2,592.62 and did not at any time return or offer to return any part thereof; that neither Jones nor Deuker had ever renounced his right to or ownership of the dividend allowed them, but that each of the defendants had elected to accept dividends on his claim in full and in lieu of any right he might have to a set-off, all of which was done prior to the purchase of the notes by Warren; that the defendant Adelson in his petition of intervention, seeking to have his claim allowed as a bank deposit, alleged his right to set off the amount due him on his deposits from the bank against the amount he owed the bank on the notes in suit, and asked to be subrogated to the rights of the receiver of the bank against his coobligors, but when the case came for trial he withdrew his claim for set-off. The plaintiff, in answer to defendants’ cross-petition, alleged that by reason of the conduct of defendants each waived his right of set-off and became estopped from now claiming any right of set-off.

The plaintiff appealed from the judgment of the trial court that Adelson, Jones and Deuker did not become estopped to claim the right of set-off by filing a claim and receiving dividends as depositors. The defendants Adelson, Jones and Deuker have perfected a cross-appeal to the finding of the trial court that they signed the notes sued upon as indorsers and that they were liable as such indorsers. The cross-appellants further assign as error the entry by the trial court of a judgment in favor of the plaintiff against the Farmers Grain & Stock Company. The Farmers Grain & Stock Company was a defendant in the lower court, defaulted, and has not appealed to this court. The questions therefore presented for our determination are: ' (1) Were the defendants liable as in[151]*151dorsers upon the notes? and (2) were the defendants entitled to a set-off, or were they estopped to make such a claim because they failed to have their right to set-off adjudicated or determined upon their petitions of intervention for the allowance of depositors’ claims in the receivership ?

Two of the notes involved in this controversy were executed by the Farmers Grain & Stock Company of Polk, Nebraska, and the other by Charles W. Flick. On the back of each of the notes appeared the names of the appellees. The indebtedness was that of the Farmers Grain & Stock Company. The appellees were officers and directors of the Farmers Grain & Stock Company. These notes were indorsed by the appellees for the purpose of raising money to carry on the business of the Farmers Grain & Stock Company. The appellees were interested in extending the credit of the company. An extension of the credit was a good consideration for signing the notes. Extension of credit to a corporation is sufficient consideration for indorsement of corporation’s note by an officer. Citizens State Bank v. Arapahoe Flour Mills, 126 Neb. 58. The evidence in this case is conclusive that the appellees were ordinary indorsers and liable upon the notes. The evidence does not bring the case within the rule of Luikart v. Meierjurgen, 124 Neb. 816.

The next question to engage our attention in this discussion is the right of the appellees in this case to a set-off of the amount of the notes sued upon here against the amount due them from the bank. Two of the appellees had small deposits, but Frank A. Adelson, in addition to a deposit which was allowed as a preferred claim in the sum of $10,370.49, was also allowed a general claim against the bank in the sum of $5,152.50.

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Bluebook (online)
254 N.W. 725, 127 Neb. 147, 1934 Neb. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bliss-v-farmers-grain-stock-co-neb-1934.