#### Nebraska Savings & Exchange Bank et al. v. Sardius C. Brewster, Executor.

Filed January 3, 1900.

No. 10,829.

1. law of the Case: Dormer Appeal. The points of law decided on a former appeal ordinarily can not be reviewed on a subsequent appeal.

2. Sufficiency of Evidence. The finding' of a jury on a question of fact will not be disturbed on review, when sustained by sufficient evidence.

3. Instructions: Issues. It is not reversible error to refuse an instruction upon a point not involved in a case, or, if in issue, it has been fully and fairly covered by the instructions given.

4. Misconduct of Counsel: Review. Argument of counsel based on matters not in evidence will not be reviewed if made in reply to similar arg-ument of adverse counsel.

Error from the district court of Douglas county. Tried below before Dickinson, J.

*Affirmed.*

*Silas Oóbb*and *E. M. Bartlett,*for plaintiffs in error.

*James H. McIntosh, contra.*

Norval, J.

This cause was before us at a former term. See *Gaylord v. Nebraska Savings & Exchange Bank,*54 Nebr., 104. The action was instituted by Mary W. Gaylord to recover the value of a certain promissory note alleged to have been converted' by the bank. For a full statement of the facts reference is made to the former opinion filed herein. The last trial in the district court resulted- in a verdict and judgment against the defendant. Subsequently the plaintiff died, and the cause has been revived in the name of her executor.

The note in question was payable to Mary W. Gaylord, and when received by the bank bore this indorsement: “Pay to the order of Mary W. Gaylord.” On the former hearing it was determined that this did not constitute *536a general indorsement of the paper, nor such an indorsement as would transfer the legal title by a mere delivery of the note. This doctrine is criticised in the brief of counsel for the bank. This point not only received careful consideration by this court prior to the announcement of its former opinion, but was investigated anew, and adhered to, on petition for rehearing, and must now be regarded as the settled law of the case.

It is insisted by the same counsel that the plaintiff is estopped from asserting any rights to the note against the bank by reason of the indorsement of the paper and sending it to her son. There is more than one ready answer to this contention. The issue of estoppel, and the evidence adduced bearing thereon were submitted to the jury under instructions as favorable as the bank had the right to demand, and 'the jury, upon ample evidence, found that issue in favor of plaintiff, which finding is conclusive on reveiw.

. The note and the assignment of the mortgage given to secure the same disclosed that the note and mortgage belonged to Mrs. Gaylord. The officers of the bank, as shown by their own testimony, were aware when they made the loan to Mrs. Gaylord that the assignment contained the name of no person as assignee; hence they were bound to know that she had not parted with her title to the note and mortgage. We passed upon a similar question in *Folsom v. McCague,*29 Nebr., 124. There certain land contracts were signed by the owner in blank, the name of the assignee being omitted, and sent to a party in Omaha to be exchanged for city property,- who pledged them as collateral security; and it was urged therein that the owner was estopped from asserting title to the contracts. In the opinion in that case it was said: “The principle of estoppel is often applied in cases where the owner of property clothes another with the apparent right of ownership or absolute disposition, and such person sells or pledges the property to an innocent third person. We do not see how this principle can be in-*537yoked in tlie case at bar. Had Crew’s name been inserted in the assignments as assignee then the doctrine contended for would apply. These assignments in blank did not hold out Crew as the apparent owner. They in no manner indicated any ownership in him. To make a valid assignment of these contracts, it was as necessary to have an assignee as it was to have the signature of the assignor. Until some one’s name was filled in these blanks as assignee the appellees appeared to be and were the real owners. It is not claimed that any name had ever been inserted therein as assignee. Had Crew inserted in the blanks his own name as assignee before presenting them to the bank, then there‘might be some ground for urging an estoppel against plaintiffs.” Paraphrasing the above, until the name of an assignee was inserted in the indorsement on the note or the assignment of the mortgage, Mrs. Gaylord appeared to be the real owner of the papers. Had the firm name of Muir & Gaylord been inserted as assignee in the assignment or indorsement there would be some ground on which to base an estoppel. . Neither the indorsement of the note nor the blank assignment of the mortgage indicated that Mrs. Gaylord had parted with the title, and the bank, at its peril, made the loan to Muir & Gaylord, accepting the note and mortgages as collateral security. There was not anything done or omitted by Mrs. Gaylord, after she ascertained that the note and mortgage had been pledged as security, which induced the bank to change or alter its previous condition so as to entitle it to invoke an estoppel against her. The. law relative to estoppel, as applicable to the case, was clearly and accurately stated in the charge of the court to the jury; and the instructions tendered on behalf of the bank were properly refused, because, in so far as they contained correct statements of the law, they had been , covered by instructions given.

Paragraphs 4, 5, 6, 7 and 8 of the charge of the court are assailed. These instructions followed the former opinion in this case, which is conceded by counsel for *538bank; therefore the assignments of error predicated on said instructions will be overruled without further comment.

The court refused to give certain instructions tendered by the bank relative to a special agency. No such question was in the case. The bank did not receive the note from the firm of Muir & Gaylord, as agent of Mrs. Gay-lord, but as absolute owner of the paper.

It is finally argued that there was misconduct on the part of the attorney for plaintiff while making his closing argument to the jury. The alleged misconduct consisted in his commenting on matters not embraced in the record. The bill of exceptions reveals the fact that counsel for the bank was the first offender in that respect, and that the remarks of plaintiff’s attorney, of which complaint is made, were in reply thereto; and hence defendant can not be heard to complain. See *Stratton v. Dole,*45 Nebr., 473. The judgment is

Affirmed.