Whisker v. Vera Cruz Coffee Co. , 95 Neb. 119 ( 1914 )

Barnes, J.

The plaintiff brought this action to recover the sum of 1489.60, with interest thereon at the .rate of 7 per cent, per annum from the 1st day of March, 1906, as a dividend due him on certain stock issued to him by the defendant company. Defendant answered that the plaintiff ha.d received and accepted the note of one W. C. Orr in payment of the dividend. This was denied by the reply. A trial to the district court for Douglas county resulted in a judgment and finding for the defendant company, and the plaintiff has appealed^

It appears that W. C. Orr was the promoter and the principal owner of the Yera Cruz Coffee Company, and had guaranteed to the stockholders a dividend of 20 per cent. On the 1st day of October, 1906, the fifth annual dividend was declared by the directors of the company, amounting to $13,084.81. At that time there was in the treasury of the company only $9,318 with which to pay the stockholders this dividend. Certain of the stockholders were paid in full, in cash, as far as the fund would go, and the others took the notes of W. C. Orr, due in a short time thereafter, in payment of the amount then due them on the dividend.

Plaintiff in his testimony admitted that he took the note of Mr. Orr who, he testified, at that time was reputed to be a man of considerable wealth, and who for many years had been his personal friend; but he further testified that he did not accept the note as payment of the sum due him from the company.

A Mr. Gratton testified that all of the shareholders, except about a dozen, were paid in cash, and the others accepted W. C. Orr’s personal notes in lieu of the dividend due them from said Yera Cruz Coffee Company. He further testified that a dividend check for $489.60 was issued to the plaintiff, William Whisker, who indorsed said check to the company, and was then handed W. C. Orr’s note for the same amount, $489.60, out of which he expected to get the cash with accruing interest at a later date.

Ezra Millard, assistant cashier of the Omaha National Bank, testified that the check in question, No. 815, issued for $489.60, passed through the Omaha National Bank, and he fully corroborated the testimony of Mr. Gratton in relation to the check.

The plaintiff refused to testify that he never received the check, or that he never indorsed the same to the company, but insisted that he had no recollection of that part of the transaction.

The only question presented by this record was whether the plaintiff received and accepted the note of W. C. Orr in payment of the fifth annual dividend, and on this question the testimony was fairly conflicting.

,In an action at law the finding of the district court is entitled to the same weight and consideration as. the verdict of a jury, and, in view of this fact, we find ourselves unable to set aside the finding and judgment in this case. The judgment of the district court is

Affirmed.

Letton, Fawcett and Hamer, JJ., not sitting.