Waters v. Hardt

127 N.W. 1065, 87 Neb. 636, 1910 Neb. LEXIS 284

• Court: Nebraska Supreme Court
• Decided: October 22, 1910
• Docket: No. 16,154
• Status: Published

Opinion

Beese, C. J.

This was an action upon a promissory note given by defendant to plaintiff for $110. The petition is in the usual form. The defendant answered setting up as his principal defense a change or alteration of the note after its execution and delivery, and without his knowledge or consent, whereby the rate of interest which the note was to draw had been increased from 5 per cent, per annum to 8 per cent, per annum. The cause was tried to the district court without the intervention of a jury, the trial resulting in a finding and judgment in favor of defendant. Plaintiff appeals.

On examining the bill of exceptions, we find a sharp conflict in the evidence. The defendant and -the person who was the agent of plaintiff, and who made the contract witli defendant and prepared and accepted the note, both testified in the most positive terms that the note, as originally written, transmitted to and received by plaintiff, provided for a 5 per cent, rate of interest. It is sIioavu that the note bore unmistakable evidence that an erasure had been made and the figure “8” placed over the erasure. Under those circumstances, the judgment Avill have to be affirmed, as Ave cannot say that the finding is clearly wrong. Fischer v. Kram, 63 Neb. 241.

Affiraied.