Blakey v. Johnson
| Decision Date | 30 May 1877 |
| Citation | 76 Ky. 197 |
| Parties | Blakey v. Johnson. |
| Court | Kentucky Court of Appeals |
APPEAL FROM WARREN CIRCUIT COURT.
R. RODES AND W. E. SETTLE FOR APPELLANT.
C. U. McELROY FOR APPELLEE.
JUDGE COFER DELIVERED THE OPINION OF THE COURT.
The appellant C. H. Blakey signed a note as the surety of William Atkin to the appellee Johnson for the sum of $500. When signed the note read as follows, viz.:
Blakey delivered the note to Atkin and Atkin to J. S. Stanley, who delivered it to Johnson, who loaned to Atkin on the faith of the note the sum of $500.
Atkin having become insolvent and been adjudged a bankrupt, Johnson wrote to Blakey after the maturity of the note, demanding payment. Blakey remitted the amount by express and in post-office orders, and the note was sent to him by mail.
Soon afterward Blakey brought this suit in equity to recover back the amount paid on the note, on the ground that after he signed it, and before it was accepted by Johnson, it was, without his knowledge or consent, altered by adding, after the word date at the end of the note as it was when he signed it, the words, "Interest to be paid semi-annually," and that he paid it without knowledge of the alteration.
On the motion of Johnson an issue out of chancery was referred to a jury, to whom the court propounded these interrogatories:
1. "Was the note in controversy altered or changed after Blakey had signed it?
2. "Did Johnson know it was altered (if it was so altered) before he took it and accepted it, or might he have known of its alteration before he accepted it by reasonable inspection?"
The jury responded:
1. "We the jury find that the note was altered after Blakey signed it.
2. "And we further find that Johnson did not know it was altered before he took and accepted it, and that he could not have known of its alteration, before he accepted it, by reasonable inspection."
The appellant excepted to the order referring these questions to a jury, and also moved for a new trial on the ground that the response of the jury to the second interrogatory was not sustained by the evidence.
The matter of referring questions of fact in equity causes to a jury in aid of the chancellor is always addressed to his discretion, and this court will not undertake to control his action in that regard unless there has been a palpable abuse of that discretion, which is not and could not be claimed to have been done in this case.
The evidence bearing upon the second proposition submitted to the jury was conflicting, but there was clearly no such preponderance against the finding of the jury as to warrant this court in setting aside the verdict.
The body of the note was written by Blakey and the words "interest to be paid semi-annually" by Atkin, and it is claimed that it was and is patent to an ordinary observer that these different portions of the note were written by different persons, and that that fact ought to have put Johnson upon inquiry, and that he is therefore to be taken to have had constructive notice that the alteration was made after Blakey signed the note.
The jury and the circuit court were of a different opinion. The original note is before us, and we concur with them. The ink used in writing the different parts of the note, and we incline to think the pen also, was the same, and the hand-writings, though differing sufficiently to be readily distinguishable upon close inspection, are not strikingly different, and a nonexpert would be quite likely upon casual observation to fail to notice that different persons had written each a part of the note.
But however this may be, we are satisfied that there was no such evidence on the face of the note as ought to charge Johnson with notice of the alteration. (Woolfolk v. Bank of America, 10 Bush, 514, 515.)
The pleadings, evidence, and interrogatories propounded by the court to the jury, as well as the briefs of counsel in this court, indicate that the parties regarded the question, whether Johnson had notice, actual or constructive, of the alteration, as the controlling question in the case.
We do not so regard it. The argument of appellee's counsel is, that the note having been delivered by the appellant to Atkin for delivery to the payee, Atkin is to be treated as the agent of the appellant, and the alteration as the appellant's act; or if Atkin is to be treated as a stranger then the spoliation of a writing by a stranger does not destroy its validity.
Atkin was undoubtedly in a limited sense the agent of the appellant. But what was the scope of his agency? He certainly had no express authority to alter the note. The authority he had was to deliver it to the appellee, and from that no authority to alter its terms can be implied. When signed by the appellant it was complete in all respects, and the case is therefore wholly unlike those cited by counsel, in which the principal was held to be the agent of the surety to fill up blanks. In those cases the note could not perform the office for which the surety signed it unless the blanks were filled, and hence authority to fill them must be implied or the transaction, which was evidently meant to accomplish some object, would be vain and useless.
Nor is the case more nearly like those in which a writing was altered by a stranger after it had taken effect by delivery. In such cases the contract having been completed, it could not be destroyed by the subsequent spoliation of a third person, without the knowledge or consent of the obligee. In this case no valid contract ever existed between the appellant and appellee. The appellant being a surety, can only be bound by the very terms of his...
To continue reading
Request your trial