NELSON V. FLINT, 166 U. S. 276 (1897)

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U.S. Supreme Court

Nelson v. Flint, 166 U.S. 276 (1897)

Nelson v. Flint

No. 196

Argued and submitted March 8, 1897

Decided March 22, 1897

166 U.S. 276


On the face of the papers contained in the record, the right of the plaintiff below to recover is clear.

Conversations between two makers of a note in the absence of the payee and without his knowledge are not binding upon him, and are not admissible in evidence against him in an action to recover on the note.

A party cannot, by merely filing with the clerk an affidavit not incorporated

Page 166 U. S. 277

in any bill of exceptions, bring into the record evidence of what took place at the trial.

The errors alleged were frivolous, and the writ of error was sued out for delay, for which, in affirming the judgment, ten percent damages are allowed under clause 2 of Rule 23.

On June 3, 1892, the defendant in error commenced suit in the district court of the Fourth Judicial District of the Territory of Utah for the County of Weber upon a promissory note, of which the following is a copy:

"$6,700 Salt Lake City, Utah, April 3, 1891"

"On or before the 23rd day of April, 1892, without grace, for value received, we, or either of us, promise to pay to the order of Richard Flint sixty-seven hundred dollars, negotiable and payable at Ogden, Utah, without defalcation or discount, with interest at the rate of ten percent per annum from date until paid, both before and after judgment."

"Interest payable semiannually."

"Alfred H. Nelson"

"Frank J. Cannon"

"A. H. Cannon"

The original answer denied that plaintiff was the owner or holder of the note, and alleged generally that it was made without consideration, and that plaintiff wrongfully obtained possession thereof. Subsequently an amendment was filed which stated that the plaintiff had been, since about June 19, 1889, the holder and owner of two promissory notes signed by the defendants Nelson and Frank J. Cannon, amounting to $6,700; that he offered to surrender those notes and waive all claim for interest if the makers of those notes would furnish him a new note signed by them and their codefendant in this case, A. H. Cannon; that, in reliance upon such agreement, the note sued upon was signed and the plaintiff obtained possession of it upon a promise to return the old notes, which he had failed to do. This amended answer was met by, in substance, a general denial. Upon a trial before the court, a jury a verdict and judgment were returned and entered in favor of the plaintiff for the full amount of the note and interest. This judgment was thereafter affirmed by the supreme court of the territory, to reverse which latter judgment of affirmance a writ of error was sued out from this Court.

Page 166 U. S. 278

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