Stringer v. The Geiser Mfg. Company

• Decision Date: 14 April 1915
• Citation: 175 S.W. 239,189 Mo.App. 337
• Parties: C. B. STRINGER, Respondent, v. THE GEISER MANUFACTURING COMPANY, Appellant
• Court: Missouri Court of Appeals

175 S.W. 239

189 Mo.App. 337

C. B. STRINGER, Respondent, v. THE GEISER MANUFACTURING COMPANY, Appellant

Court of Appeals of Missouri, Springfield

April 14, 1915

Appeal from Webster County Circuit Court.--Hon. C. H. Skinker Judge.

Judgment affirmed.

G. C Dalton and W. R. Baxter for appellant.

(1) Parol evidence is not admissible to show that a less sum is due the mortgagee than is recited in the mortgage. Patchin v. Pierce, 12 Wen. (N. Y.) 61. (2) Whenever the consideration, of a written instrument, goes beyond mere recital and becomes contractual, thereby creating and attesting right, it cannot be varied, by parol testimony. Davis v. Gann, 63 Mo.App. 429. (3) One dealing with an agent cannot assume that the agent is authorized to bind his principal by an act beyond the implied authority of the agent. And the agent here had no implied authority to accept anything but money in payment on Hubbs and Asbridge notes. And any statement made by the agent, if made, certainly would not bind the defendant and further it could not work any hardship on the plaintiff, for his status was fixed before that time. Reinhart Grocery Co. v. Knuckles, 155 S.W. 1105; Wheeler & Wilson Mfg. Co. v. Givan, 65 Mo. 89; Mechem on Agency, sec. 376; Latham v. First Nat'l Bank, 122 S.W. 992.

Wm. P Elmer and John M. Stephens for respondent.

(1) The mortgage dated September 9, 1907, had been altered by inserting therein indebtedness not agreed upon and inserted without the knowledge or consent of the makers of the mortgage. The whole instrument thereby became void. Any material alteration of a contract voids it, and testimony showing such alteration is not objectionable on the ground that it varies a written contract. It is a fraud, which was pleaded in plaintiff's reply. Glenn v. Glenn, 87 Mo.App. 377; Hendricks v. Hendricks, 84 Mo.App. 27; Rothwell v. Jamison, 147 Mo. 601; Freland v. Williamson, 220 Mo. 217; 2 Am. & Eng. Ency. Law, page 184. (2) Any material alteration of a written contract avoids it. Harrison v. Lakeman, 189 Mo. 581; Koons v. St. Louis Car Co., 203 Mo. 227; Taylor v. Sartorious, 130 Mo.App. 23. (3) The contract was void as to plaintiff as well as Hubbs and Asbridge. He was recognized by defendant as Hubbs and Asbridge's vendee and was a privy under the true contract between defendant and them. Plaintiff did not assume a different contract from the one actually made, and could not be bound by an instrument void as to his vendors. A material alteration of a mortgage annuls it and prevents a foreclosure of the same. 2 Am. & Eng. Ency. Law, page 188. (4) No recovery can be had on the altered instrument. Id., page 187.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

This was a suit for the conversion of certain machinery, resulting in a judgment for the plaintiff. The case was here on appeal last year (177 Mo.App. 234, 162 S.W. 645) and in the opinion written at that time may be found a full statement of the facts developed in the trial in the circuit court of Dent county. When the case was remanded to the Dent county circuit court a change of venue was allowed at the instance of the defendant. The case was sent to Webster county where another trial resulted in a judgment for $ 1000 in favor of the plaintiff, and defendant appealed. We refer to the former opinion as stating the main facts of the case and will in this opinion set forth only enough of the additional facts brought out as is deemed necessary to decide the questions raised on this appeal.

At the trial in Webster county the plaintiff set up in reply to defendant's answer affirmative matter charging that the first four notes described in the chattel mortgage for $ 275 each were placed therein after it had been signed, executed and delivered by Hubbs and Asbridge to W. D. Gilstrap, the agent of the defendant; that the amount represented by the four $ 75 notes was represented by other notes described in the chattel mortgage, and that all the other notes described in the chattel mortgage were properly placed therein when it was executed by Hubbs and Asbridge, and that all this indebtedness had been fully paid and discharged. We quote a portion of the reply that is pertinent to the discussion: "That after the execution and delivery of the said chattel mortgage to the said W. D. Gilstrap, as agent for the defendant, and to the said defendant, that the said chattel mortgage was, without the knowledge and consent of the said B. B. Hubbs and W. N. Asbridge wrongfully and fraudulently changed and altered; and that there were other notes, which had been prior to that time executed by W. N. Asbridge and B. B. Hubbs, inserted in said chattel mortgage, and particularly four notes dated June 3, 1907, for $ 275 each were inserted in said chattel mortgage after the execution and delivery thereof to the said W. D. Gilstrap, and without the knowledge and consent of the said B. B. Hubbs and W. N. Asbridge."

The court refused all the instructions offered by plaintiff and defendant and submitted the issues on two instructions given of its own motion, one of which told the jury that nine might agree on a verdict. The other instruction given is as follows:

"The court instructs the jury that it stands admitted in this case that on February 1, 1912, the plaintiff was in the possession of and claimed to own the following described property to-wit: one Peerless traction engine; one Peerless separator; one Peerless sawmill; one fifty-inch Atkins saw; one wind stacker; 150 feet four-ply belt; one tank pump and water tank; and the tools and belts used with same; in Dent county, Missouri, and on or about said date the defendant took and converted said property to its own use and that the defendant took said property under a chattel mortgage executed to defendant by B. B. Hubbs and W. N. Asbridge upon said property and that the defendant claims that said chattel mortgage was given to secure the payment to defendant of four notes dated June 3, 1907, for the sum of $ 275 each, and also certain notes dated September 9, 1907, for the aggregate sum of $ 1050, all signed by Hubbs and Asbridge.

"You are, therefore, instructed that if you believe and find from the evidence that at the time said chattel mortgage was signed, executed and delivered by said Hubbs and Asbridge to the defendant, or defendant's agent, that it did not describe said four notes for the sum of $ 275 each, but that after said mortgage had been so executed and delivered by the said Hubbs and Asbridge, it was altered by the writing in of the description of said $ 275 notes, then you should find the issues for the plaintiff, and assess his damages at such sum as the evidence shows said property was reasonably worth at the time it was taken and converted by the defendant, not to exceed the sum of $ 2500.

"If on the other hand, you believe and find from the evidence that said four notes for $ 275 each were mentioned and described in said chattel mortgage before it was executed and delivered by said Hubbs and Asbridge to the defendant, or its agent, then the said chattel mortgage was a valid lien upon said property and the defendant had a right to take said property from the plaintiff under said mortgage and sell it for the payment of said note, and you...