Lampe v. Franklin American Trust Co.

• Decision Date: 08 September 1936
• Parties: Grover W. Lampe, Claimant and Appellee, v. Franklin American Trust Company and Mary Birkenback, Executors of the Last Will and Testament of Milton W. Birkenback, Defendants and Appellants
• Court: Missouri Supreme Court

96 S.W.2d 710

339 Mo. 361

Grover W. Lampe, Claimant and Appellee, v. Franklin American Trust Company and Mary Birkenback, Executors of the Last Will and Testament of Milton W. Birkenback, Defendants and Appellants

Supreme Court of Missouri

September 8, 1936

Appeal from Polk Circuit Court; Hon. C. H. Skinker, Judge.

Reversed and remanded.

Sam M. Wear, Herman Pufahl and W. D. Tatlow for appellants.

(1) The court should have directed a verdict for the defendants. The rule first established in Missouri in 1856, and prior thereto, was that a fraudulent alteration of an instrument would defeat a recovery thereon, although an immaterial alteration that was not fraudulent might not do so. Lubbering v. Kohlbrecher, 22 Mo. 596; Murphy v Holliway, 16 S.W.2d 113. The authorities drew a clear and sharp distinction between a fraudulent alteration and one that was not. (a) In 1860 this court finally adopted, and has consistently followed, the rule that an intentional alteration of an instrument by a party thereto, without the consent of the other party, renders it void, whether the alteration is material or immaterial, for the reason that the grounds for this rule are two-fold. First, that of public policy, to prevent fraud by not permitting a man to take the chance of committing a fraud without running any risk of losing in the event it is detected. The other is, to insure the identity of the instrument and prevent the substitution of another without the privity of the party concerned. Haskell v. Champion, 30 Mo. 136; Evans v Foreman, 60 Mo. 452; Kelly v. Thuey, 143 Mo 434; State ex rel. v. Chick, 146 Mo. 657; Cable v. Jones, 179 Mo. 606; Higgins v. Harvester, 181 Mo. 309; Harrison v. Lakennan, 189 Mo. 603; Koonz v. St. L. Car Co., 203 Mo. 257; Carson v. Woods, 177 S.W. 623; Barnhart v. Little, 185 S.W. 174; Bacon v. Theiss, 208 S.W. 254; Bank of Moberly v. Meals, 316 Mo. 1158, 295 S.W. 73; Kircher v. Dunnington, 325 Mo. 362, 29 S.W.2d 138; State ex rel. v. McKay, 325 Mo. 1092, 30 S.W.2d 91; State ex rel. v. McKay, 49 S.W.2d 125; Kempf v. Phillips P. L. Co., 61 S.W.2d 424. The Missouri rule is the common-law rule. Adams v. Frye, 3 Pick. 104; Pigat's Case, 11 Coke, 27. (b) A fraudulent material alteration nullifies not only the instrument but forfeits the right of recovery on the original consideration. This rule is recognized by the Missouri decisions and is the prevailing and substantially universal holding in other jurisdictions. McCormick Harvesting Machine Co. v. Blair, 146 Mo.App. 374, 124 S.W. 49; Parker v. Staley, 55 S.W.2d 333; Marth v. Wiskerchen, 186 Mo.App. 521, 172 S.W. 412; Sherman v. Conn. Mut. Life Ins. Co., 222 Mass. 159, 110 N.E. 160; Adams v. Frye, 3 Met. 103; Wheelock v. Freeman, 13 Pick. 165; Stoddard v. Penneman, 108 Mass. 366, 11 Am. Rep. 363; Farmers' Bank v. Huss, 182 Wis. 658, 197 N.W. 177; Walton Plow Co. v. Campbell, 34 Neb. 173, 52 N.W. 883; First Natl. Bank v. Yowell, 155 Tenn. 430, 294 S.W. 1101; McCannon & Co. v. Brown, 169 Ark. 954, 277 S.W. 539; Stevens v. Austin, 21 S.W.2d 699; Wright v. Austin, 1 S.W.2d 703; Phillip Carey Mfg. Co. v. Austin, 58 W.Va. 189, 52 S.E. 515. (c) The negotiable instrument statute cannot be construed to repeal by implication a definite fixed public policy to prevent fraud with which the statute does not attempt to deal. Manufacturers' & Merchants' Bank v. Twelfth Street Bank, 223 Mo.App. 194, 16 S.W.2d 105; Levy v. Doerhoefer, 188 Ky. 412, 222 S.W. 515. (2) Under the express provisions of the statute, Grover W. Lampe, the appellee, was incompetent to testify to any fact occurring prior to the probating of the will or the appointment of the executors. Sec. 1723, R. S. 1929; Kersey v. O'Day, 173 Mo. 560, 73 S.W. 481; Davis v. Robb, 10 S.W.2d 680. The appellants clearly did not waive the incompetency of the witness by a legitimate cross-examination when he was offered as a witness in another case and neither did they waive his incompetency by offering his cross-examination in evidence on first trial in the instant case as an admission against interest. West v. Kresge Co., 213 S.W. 165; Southern Bank v. Nichols, 202 Mo. 309, 100 S.W. 613; Forrester v. Sullivan, 231 Mo. 345, 132 S.W. 722; Grodsky v. Consolidated Bag Co., 324 Mo. 1076, 26 S.W.2d 621; Meffert v. Lawson, 315 Mo. 1099, 287 S.W. 610. (3) There is no evidence in the case that the paper was delivered by Birkenback to Grover W. Lampe with authority to fill in the name of the payee in the third line thereof. It was delivered, if at all, as a completed instrument. It is clearly erroneous to direct a jury to weigh a rebuttal presumption, which is not evidence and cannot be weighed, when, on the undisputed evidence, the law presumes nothing with reference to such a changed and altered instrument. That the law indulges in no presumption with reference to alterations of a suspicious nature, such as are clearly shown by the face of the note in the instant case, has been repeatedly decided by this court. Meffert v. Lawson, 289 Mo. 361, 233 S.W. 38; Kircher v. Dunnington, 325 Mo. 362, 29 S.W.2d 141. The instruction plainly places the burden upon the defendants to show a want of consideration for the alleged note instead of upon the plaintiff where it clearly belonged. State ex rel. v. McKay, 325 Mo. 1092, 30 S.W.2d 91; Meredith v. Brock, 17 S.W.2d 352; State ex rel. v. Chick, 146 Mo. 657, 48 S.W. 829. It is an error for the court to direct the jury to attempt to weigh a rebuttal presumption, which is not evidence and cannot be weighed. State ex rel. v. Ellison, 268 Mo. 257, 187 S.W. 26. (4) Defendants' Instruction 8 directed the jury to take into consideration all the facts and circumstances of the case and weigh them along with the other evidence in the case "and after doing so if you find and believe that it is more probable that such changes or alterations have been made in the instrument after it was signed by the deceased and without his knowledge or consent, than it is that such alterations and changes were made at or about the time that the deceased signed the instrument and under his direction, and with his knowledge and consent, then you should find that such instrument is not his note." This instruction is in accordance with a decision of this court, which expressly holds that a civil case is to be determined upon the probabilities. State ex rel. v. Ellison, 268 Mo. 257, 187 S.W. 26.

Frank B. Williams, A. P. Stone, Jr., R. Jasper Smith and Douglas & Douglas for appellee.

(1) Defendants' oral requests for a directed verdict at the close of plaintiff's case and at the close of the entire case did not raise or present to the trial court the alleged issue of the sufficiency of the evidence to make a case for the jury; and, by failing to offer in the trial court a written instruction in the nature of a demurrer to the evidence, defendants admitted, as a matter of law, that the case was one for the jury. Sec. 967, R. S. 1929; Dusky v Kansas City, 58 S.W.2d 768, 227 Mo.App. 849; Sutton v. Kansas City Star Co., 54 S.W.2d 454; Lintz v. Atlanta Life Ins. Co., 49 S.W.2d 675; Thompson v. Main Street Bank, 42 S.W.2d 56; Gee v. Sherman, 293 S.W. 789; McClure v. Camp, 148 Mo. 112; Lewis v. Mining Co., 199 Mo. 467. (a) Even if defendants' oral requests for a directed verdict raised alleged issue of sufficiency of evidence, which appellee denies, yet the case was properly submitted to the jury upon conflicting evidence, and the jury's finding on issues of fact is conclusive on the appellate court. Rose v. Mo. Dist. Tel. Co., 43 S.W.2d 562; Aly v. Term. Railroad Assn., 78 S.W.2d 851; Simmons v. K. C. Jockey Club, 66 S.W.2d 119; Clark v. Commerce Trust Co., 62 S.W.2d 874; Parrent v. Railroad Co., 70 S.W.2d 1068; State ex rel. Natl. Bank v. Sturgis, 276 Mo. 559; Winkler v. Railroad Co., 10 S.W.2d 649; M. K. & T. Ry. Co. v. Am. Surety Co., 291 Mo. 92. (b) Appellate court will not weigh evidence or pass on credibility of witnesses. Rath v. Knight, 55 S.W.2d 682; Anderson v. Asphalt Distributing Co., 55 S.W.2d 688; McCollum v. Winwood Amusement Co., 69 S.W.2d 693. (2) By examining respondent in an independent proceeding as to the vital questions of the consideration for, and execution of, the note herein sued on, upon which respondent would have then been incompetent to testify in his own behalf, and by offering said testimony in evidence against respondent, appellants waived the right to object to the competency of respondent to testify in his own behalf upon such subjects; and appellants' right to object to the competency of respondent having been once waived, it is waived for all time and may not be recalled at a subsequent trial of the same cause. Trautmann v. Trautmann, 300 Mo. 322; Commission Co. v. Humes, 193 Mo.App. 129; Galvin v. Knights of Father Mathew, 169 Mo.App. 512; Imboden v. Trust Co., 111 Mo.App. 232; Ryan v. Ins. Co., 30 S.W.2d 194; Tierney v. Hannon's Executor, 81 Mo.App. 491; Hoehn v. Struttmann, 71 Mo.App. 402; Jones v. Prudential Ins. Co., 173 Mo.App. 2; Norvel v. Cooper, 155 Mo.App. 446. (3) The court did not err in giving appellee's instructions A, B and C. (a) Appellants, by their failure to cite authority, discuss, elaborate or develop in their brief or argument, alleged error in the giving of appellee's instructions A and B, have waived defects, if any, in said instructions, have abandoned the issues, and this court does not have said instructions before it for review. Rule 15, Supreme Court; St. Louis v. Realty Co., 48 S.W.2d 938; Bellis v. Modern Woodmen, 49 S.W.2d 1059; Poindexter v. Ellison, 34 S.W.2d 554; Harvester Co. v. Bank, 48 S.W.2d 158. (b) The burden of proof is on appellants to show, not only that the note is without consideration, but that under a preponderance of the evidence plaintiff is not entitled to...