Bailey v. Bank
| Citation | 74 S.W. 874,99 Mo.App. 571 |
| Parties | EDWARD M. BAILEY, Appellant, v. GILMAN BANK et al., Respondents |
| Decision Date | 27 April 1903 |
| Court | Court of Appeals of Kansas |
Appeal from Harrison Circuit Court.--Hon. P. C. Stepp, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Platt Hubbell, George Hubbell and J. C. Wilson for appellant.
(1) Replevin may be maintained to recover a note obtained by fraud. Goodger v. Finn, 10 Mo.App. l. c. 231; Goldsmith v. Taussig, 60 Mo.App. 460; Gotcher v Haefner, 107 Mo. l. c. 277; Keim v. Vette, 167 Mo. 389. (2) The foregoing observations show that a note though paid, has a value to the maker, and where it is thus paid, and the plaintiff, as against the defendant, is entitled to the possession, it is enough to state a nominal money value. Savery v. Hays, 20 Iowa 25; S. C., 89 Am. Dec. 512. (3) The only interest in the land that Beckner parted with by his deed to Bailey, was his equity of redemption; the only interest Bailey acquired by his deed from Beckner, was Beckner's right to redeem. It was nothing more than a privilege or license. Snyder v Railroad, 131 Mo. 580. "If it was absolutely worthless, no tender or return of it was necessary." Wicks v. Smith, 30 Am. Rep. 435; S. C., 21 Kan. 412; Bank v. Peck, 8 Kan. 447; Smith v. McNair, 19 Kan. 334; Babcock v. Case, 100 Am. Dec. 655; Poe v. Stockton, 39 Mo.App. 560; Compton v. Parsons, 76 Mo. 457; 14 Am. and Eng. Ency. Law (2 Ed.), 162, note 1; 21 Am. and Eng. Ency. Law (1 Ed.), 89. (4) Plaintiff Bailey is entitled to maintain replevin for this note, for the reason that it was rendered void by the aforesaid alteration. He is entitled to the possession of this note because it has his signature affixed to it, and he has the right to the possession of it in order to protect himself from vexatious litigation by reason thereof. Smith v. Eals, 46 N.W. 1111; S. C., 25 Am. St. Rep. 486, 81 Iowa 235; Savery v. Hays, 20 Iowa 25; Sigler v. Hidy, 56 Iowa 504; Cobbey on Replevin (2 Ed.), 76; 20 Am. and Eng. Ency. of Law (1 Ed.), 1061; Moore v. Hutchinson, 69 Mo. 429; Kelly v. Thuey, 143 Mo. 434; Haskell v. Champion, 30 Mo. 138; Burnham v. Gasnell, 47 Mo.App. 639; Morrison v. Garth, 78 Mo. 437; Bank v. Fricke, 75 Mo. 182; Allen v. Dornan, 57 Mo.App. 291; Evans v. Foreman, 60 Mo. 452; Bank v. Dunn, 62 Mo. 79; Bank v. Bossermann, 52 Mo.App. 272; Girdner v. Gibbons, 91 Mo.App. 412; Clark v. Barnes, 58 Mo.App. 672; 16 Am. and Eng. Ency. of Law (2 Ed.), 704; 55 Cent. Law J. 102; Collier on Bankruptcy, p. 108.
O. N. Gibson for respondent.
(1) One who would rescind must offer to put the other party in statu quo. Crumb v. Wright, 97 Mo. 138; Estes v. Reynolds, 75 Mo. 563; Melton v. Smith, 65 Mo. 315; Woods v. Straup, 63 Mo. 437; Woodward v. Van Hoy, 45 Mo. 300; Smith v. Busby, 15 Mo. 388; Taylor v. Short, 107 Mo. 384; Robinson v. Siple, 129 Mo. 208; Chemical Co. v. Nickells, 66 Mo.App. 678; Shoe Co. v. Bank, 56 Mo.App. 663; Publishing Co. v. Hall, 81 Mo.App. 277; Kirk & Co. v. Seeley, 63 Mo.App. 262-5; Viertel v. Smith, 55 Mo.App. 617-20; Brockhus v. Schilling, 52 Mo.App. 73-81; Johnson v. Agricultural Co., 20 Mo.App. 100; Hart v. Hamlin, 43 Mo. 171-5; Lapp v. Ryan, 23 Mo.App. 436-9; Com. Co. v. Railroad, 52 Mo.App. 407; Overton v. Brown, 63 Mo.App. 49; Tatum v. Brooker, 51 Mo. 148; Lockwood v. Railroad, 65 Mo. 233-6; Walker v. Owens, 79 Mo. 563; Woodson v. Hubbard, 45 Mo.App. 356-63. (2) Except in Missouri and New Jersey, the rule prevails that an immaterial alteration does not vitiate an instrument. 2 Am. and Eng. Ency. Law (2 Ed.), pp. 220-221. The following cases favor the doctrine, that an alteration nullifies, whether material or immaterial: Haskell v. Champion, 30 Mo. 136; Bank v. Dunn, 62 Mo. 79. The following direct adjudications hold that an immaterial alteration does not nullify: Bank v. Bangs, 42 Mo. 450; Williams v. Jensen, 75 Mo. 681; Bldg. Ass'n v. Fitzmaurice, 7 Mo.App. 283. In the following cases the materiality appears to have been regarded as the controlling question: Whitmer v. Frye, 10 Mo. 348; Lubbering v. Kohlbrecher, 22 Mo. 596; Ivory v. Michael, 33 Mo. 398; Owings v. Arnot, 33 Mo. 406; Bank v. Bangs, 42 Mo. 450; Britton v. Dierker, 46 Mo. 591; Bank v. Nickells, 34 Mo.App. 295-301; Johnson v. Parker, 86 Mo.App. 660; Heman v. Gilliam, (Mo. Sup.), 71 S.W. 163. The following cases regard the motive with which the alteration was made as important: Lubbering v. Kohlbrecher, 22 Mo. 598; Baskin v. Wayne, 62 Mo.App. 515; Bank v. Pettit, 85 Mo.App. 497-503; Girdner v. Gibbons, 91 Mo.App. 412-4. (3) An altered instrument is evidence in a collateral proceeding. Parker v. Moore, 29 Mo. 218; Wood v. Hildebrand, 46 Mo. 284. (4) It is no defense to an action upon a mortgage that the notes which it secures have been altered. Baskin v. Wayne, 62 Mo.App. 515; Huffman v. Malloy, 91 Mo.App. 367. (5) If date of maturity of a note is left blank, the payee is authorized to fill it in. Wilson v. Henderson, 48 Am. Dec. 718; Bank v. Bingham, 118 N.Y. 348, 23 N.E. 180. (6) One who would have an altered instrument delivered up or cancelled must restore whatever consideration he has received by virtue of it. Singleton v. McQueery, 85 Ky. 41; Cannon v. Grigsby, 116 Ill. 151; 5 N.E. 362; Emerson v. Opp. 9 Ind.App. 581; 34 N.E. 840.
--This is an action of replevin to recover the possession of a non-negotiable promissory note. The case presented by the record is about this: The defendant Beckner on August 26, 1901, by deed of that date, conveyed to plaintiff a certain tract of land for the expressed consideration of $ 2,300, subject to a deed of trust for $ 1,675 and the interest thereon. It is in effect conceded that defendant Beckner fraudulently misrepresented to plaintiff that there were no incumbrances on said tract of land except the $ 1,675 deed of trust and one year's interest thereon, amounting to $ 134, and that by reason of such fraudulent misrepresentations plaintiff was induced to purchase it and to accept a deed therefor subject to said deed of trust and interest thereon for only one year when there was four years' interest due thereon, etc. As to the fraudulent misrepresentations, there seems to be no serious dispute.
Plaintiff executed and delivered to Beckner his note for $ 375 as a part of the consideration for the purchase price of the land. The note so given was secured by a deed of trust covering certain live stock and was pledged by Beckner to the defendant bank to secure a loan made by it to him.
The defendants contend that even if the said promissory note was procured by the defendant Beckner of the plaintiff by fraudulent misrepresentation, the plaintiff is not entitled to recover, for the reason that he has not offered to put either the defendant bank or Beckner in statu quo; that is to say, he did not upon discovering the fraud promptly rescind or offer to rescind his contract, or offer to reconvey the right acquired by him under the Beckner deed. It is admitted that under the general rule that one who would rescind must put the other party in statu quo, and this omission would be fatal to plaintiff's right to recover were it not that the case falls within an exception to this general rule. Plaintiff contends that under the Beckner deed nothing passed to him but a mere right to redeem the land--a right that was utterly and wholly valueless. The law is quite well settled that where a party seeking to rescind a contract of sale or purchase has received nothing of value thereon, it is not a condition precedent to his recovery that he return or offer to return, because in such case that would be an idle and useless ceremony that is never required by law. Poe v. Stockton, 39 Mo.App. 560; Compton v. Parsons, 76 Mo. 455; Brown v. Weldon, 27 Mo.App. 251; McCormick Machine Co. v. Brady, 67 Mo.App. 292; Thummel v. Dukes, 82 Mo.App. 53; Murphy v. Gay, 37 Mo. 535; Bank v. Peck, 8 Kan. 660; Wicks v. Smith, 21 Kan. 412; Bassett v. Brown, 105 Mass. 551. The right acquired by plaintiff under the Beckner deed was no more than a right to redeem. Snyder v. Railroad, 131 Mo. 568. Whether or not this right was absolutely worthless was an issue of fact touching which the evidence was not all one way.
There was some evidence which tended to prove that it was agreed between plaintiff and defendant Beckner at the time of the transaction of the sale and purchase that the land was of the value of $ 2,300, and that as this amount exceeded that of the principal and interest due on the deed of trust note by about fifty dollars, or, in other words, that that amount was the value of the right of plaintiff's equity of redemption. But there was further evidence which tends to prove that the value of the land was much less than $ 2,300. Whether there was an agreement as to the value of the land, or, if so, what that value was, is also a disputed question of fact. It follows from the foregoing observations that the question as to whether or not the plaintiff's right to redeem was worthless, was one for the jury and not for the court. If such right was worthless, then the plaintiff was not required to prove a timely offer to rescind as a condition precedent to his right to a recovery.
The plaintiff claims the right to maintain his action on the further ground that the note, after its execution and delivery, was rendered void by an alteration thereof. The nature and extent of such alteration will appear by reference to the following fac simile copy of the note itself:
[SEE ILLUSTRATION IN ORIGINAL]
It is quite apparent that the erasure and alteration thus appearing in no way varied the legal effect of the instrument in the slightest. The terms "May 1st after," which it appears were inserted after the execution and delivery of the note are not at variance with...
To continue reading
Request your trial