American Nat'l Bank of New York v. Bangs

• Decision Date: 31 March 1868
• Citation: 42 Mo. 450
• Parties: THE AMERICAN NATIONAL BANK OF NEW YORK, Plaintiff in Error, v. JAMES H. BANGS and JOHN DEADY, Defendants in Error.
• Court: Missouri Supreme Court

42 Mo. 450

THE AMERICAN NATIONAL BANK OF NEW YORK, Plaintiff in Error,

v.JAMES H. BANGS and JOHN DEADY, Defendants in Error.

Supreme Court of Missouri.

March Term, 1868.

Error to St. Louis Circuit Court.

This was an action to recover on a negotiable promissory note, alleged to have been made by defendants to the firm of Fritsch & Simonton, and by them indorsed to the plaintiff. The note was filed with the petition, and is in these words:

“$1,000.

ST. LOUIS, October 10, 1866.

Three months after date, we promise to pay to the order of Fritsch & Simonton, New York, one thousand dollars, for value received, negotiable and payable without defalcation or discount. Due at Goodyear, Bros. & Durand's, New York, Jan. 10-13.

BANGS & DEADY.”

(Indorsed) “Fritsch & Simonton.”

A. H. Bereman, for plaintiff in error.

I. The addition to the body of the note of a place of payment is not material, because defendants are liable universally--everywhere. (Walcott v. Van Santvoord, 17 Johns. 248.) Such authorities make the alteration material only in case of indorsers, who have a right to insist upon the note being presented at the proper place for payment. But plaintiff claims there was no alteration; that the placing the words as proven does not amount to an alteration, but is only a memorandum for the holders as to where the indorsers may be found, or other memorandum or abbreviation as to when it fell due, “Jan. 10-13.” There is not a case in point, in England or America, in which it is not held that such alleged alteration is no alteration. (Exon v. Russell, 4 M. &. S. 505; Williams v. Waring, 10 Barn. & Cres. 2; Story on Prom. Notes, 56; 2 Pars. Notes and Bills, 548; Cunard v. Tozer, 2 Kerr, 367; Smith's Lead. Cas. 1172, vol. 1, part 2, notes to case of Master v. Miller.) The case of The Bank of America v. Woodworth, 19 Johns. 391, quoted for defendant, was a suit between a holder and an indorser. Kane was the maker; after the note was indorsed, Kane wrote the memorandum, and actually signed his name to it, as well as to the note, and thus actually made a new contract, and actually made the note payable at a particular place, and so the note was actually altered. The bank presented the note for payment at the place designated in the signed memorandum, and did not make a personal demand on the maker. The indorser was released simply on the ground that when he indorsed the note his contract was that he was to pay in case of due demand at maturity, refusal and notice, etc. Notwithstanding the actual alteration, if personal demand had been made of the maker, at whatever place, is there any doubt what would have been the holding of the court? The case is not in point. The case of Nazro et al. v. Fuller et al., 24 Wend. 374, is subsequent to that of the Bank of America, and quotes the older case as authority, but it is not evident that this question was presented. If it were, the judgment is based on the ground that the court below should have submitted the question to the jury as to whether it was a marginal note or was intended to be an alteration. In the cases of Nazro v. Fuller, and Southwark Bank v. Gross, 35 Penn. 80, there was an alteration, the words being added to the body of the note. The court will observe that every authority quoted in opposition is based upon some rule affecting acceptances of bills of exchange.

A. M. Gardner, for defendants in error.

I. The alteration of a note, without the consent of the parties, in any material part, as in the date, sum, time when or place where payable, renders the note wholly invalid as against any party not consenting thereto, although it be in the hands of an innocent holder. (Chitty on Bills, 182.) It was contended by the plaintiff at the trial that the added words were not a part of the note, but simply a memorandum on the margin to indicate where and when the note should be paid. Unfortunately for this view of the case, the makers resided in St. Louis, the note was made in St. Louis, and, presumptively at least, payable in St. Louis. In fact, by the terms of the note, it would have been payable in St. Louis, unless with the consent of the parties, and unless the place of payment had been therein named. It certainly was very material to the defendants to know whether their note was to be paid in New York or St. Louis--especially if the change made them liable to protest, and their mercantile credit liable to be injured or destroyed thereby, without a demand on them for payment or the means of knowing where their note could or would be presented for payment. The respondents insist that the law upon this point is well settled. (Bank of America v. Woodworth, 19 Johns. 315.) In that case it was held that the words “payable at the Bank of America,” written on the margin, were a material alteration of the contract and discharged the liability of the party without whose knowledge or consent it was made. Where, to a note already complete, a memorandum is added or words inserted varying the legal effect of its stipulations, the alteration is material. (2 Pars. on Bills and Notes, 545; Smith's Lead. Cas. 819.) The making of a note payable at a particular place, where none was named at the time of its execution, vitiates it in the hands of the indorsee. (Nazro v. Fuller, 24 Wend. 374; Southwark Bank v. Gross, 35 Penn. 80; Burchfeld v. Moore, 3 Ellis & Blk. 682.)

II. Although the note might have been a perfect and complete contract without the “added words,” yet the plaintiffs saw fit to make the addition, and...