State Sav. Bank of St. Joseph, Mo. v. Shaffer
Decision Date | 31 January 1879 |
Citation | 1 N.W. 980,9 Neb. 1 |
Parties | THE STATE SAVINGS BANK OF ST. JOSEPH, MO., PLAINTIFF IN ERROR, v. FRANCIS SHAFFER AND ELIAS S. MEYERS, DEFENDANTS IN ERROR. |
Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Richardson County.
Thomas & Gillespie, for plaintiffs in error.
_____ Scott, for defendants in error.
--The defendants are the makers of a promissory note, of which the following is a copy:
+------------------------------------------+ ¦“$217.36.¦FALLS CITY, NEB., Sept. 5, 1877.¦ +------------------------------------------+
Ninety days after date we, or either of us, promise to pay C. L. Keim, or order, two hundred and seventeen dollars and thirty-six cents, for value received, negotiable and payable without defalcation or discount, and interest from maturity, until paid, at the rate of twelve per cent per annum, and ten per cent attorney's fees if collected by suit--payable at the Falls City Bank, Falls City, Nebraska.
FRANCIS SHAFFER,
ELIAS S. MEYERS.”
The note was delivered to Keim, who, before the maturity thereof, without consent of the makers, changed the amount of the note from two hundred and seventeen dollars and thirty-six cents to two hundred and eight dollars and twelve cents, and transferred the same by indorsement to the plaintiff, which brought an action on the note in the district court of Richardson County. On the trial of the cause the court excluded the note as evidence, and refused to permit an amendment to the petition setting up the original consideration of the note. Judgment having been rendered in favor of the defendants, the plaintiff brings the cause into this court by petition in error. In Brown v. Straw, 6 Neb. 536, this court held that the alteration of a promissory note in any material part renders it invalid as against a party not consenting thereto, even in the hands of an innocent purchaser. The reason is, that the agreement is not the one into which the defendant entered; its identity is changed, and another is substituted without his consent. And the policy of the law is to permit no tampering with written instruments. The note, therefore, having been changed in a material part, without the consent of the makers, is void, in whosoever hands it may afterwards be placed. The court, therefore, did not err in excluding the note as evidence. Where, however, an alteration is made under an honest mistake of right, and not fraudulently and with a view to gain an advantage improperly, a recovery may be had upon the original consideration of the note.
In Merrick v. Bowry & Sons, 4 Ohio St. 60, the supreme court of Ohio held that a recovery upon the original consideration could be had in such cases; and the reasoning of the court, after reviewing the authorities, appears to be unanswerable. To the same effect see Mattison v. Ellsworth...
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