Capital Bank v. Armstrong

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSHERWOOD
Citation62 Mo. 59
Decision Date31 January 1876
PartiesCAPITAL BANK, Appellant, v. D. H. ARMSTRONG, et al., Respondents.

62 Mo. 59

CAPITAL BANK, Appellant,
v.
D. H. ARMSTRONG, et al., Respondents.

Supreme Court of Missouri.

January Term, 1876.


[62 Mo. 60]

Appeal from St. Louis Circuit Court.

A. M. Gardener, with S. Knox, for Appellant, cited Nedecker et al. vs. Cochran, Am. Law Reg., Nov. 1875, p. 697; Chapman vs. Rose, 56 N. Y., 137; Seybel vs. Nat. Currency Bk., 54 N. Y., 288; Bank vs. McCoy. 69 Penn. St., 204; Zimmerman vs. Rote, 75 Penn., 188; Woolfolk vs. Bank of America, 10 Bush, [Ky.] 517; Phelan vs. Moss, 67 Penn. St., [17 P. F. Smith], 59; Garrand vs. Haddan, 67 Penn. St. [17 P. F. Smith], 82; Trigg vs. Taylor, 27 Mo., 248; Young vs. Grote, 4 Bingh., 253; Bank of Commonwealth vs. Curry, 2 Dana, 142; Muskgrove vs. Eldred, 9 Wall. 544; Mich. Ins. Co. vs. Leavenworth, 30 Vt., 11; Nebecker vs. Cutsinger, 48 Ind., 436; Rumbolt vs. Eddy, 34 Iowa. 440; Lake vs. Reed, 29 Iowa, 258; Swift vs. Tyson, 16 Pet., 1; Goodman vs. Symonds, 20 How., 452; Magee vs. Badger, 34 N. Y., 247; Dow's Ex'rs vs. Spenny's Ex'rs, 29 Mo., 386; Bank of U. S. vs. Dunn, 6 Pet., 51; Walton vs. Sutton, 1 Dun & East, Term R. 296; Churchill vs. Suter, 4 Mass., 156; Houghton vs. Page, 1 N. H., 60; Coleman vs. Wise, 2 John., 165.

[62 Mo. 61]

Dryden & Dryden, with whom was A. Reese, for Respondents, cited Trigg vs. Taylor, 27 Mo., 245; Hascall vs. Champoin, 30 Mo., 136; Britton vs. Dierker, 46 Mo., 591; Hood vs. Steele, 6 Wall., 80; Wash. S. Bank vs. Ecky, 51 Mo., 273; 8 Mo., 335; Cheaton vs. Chambless, 6 Rand, 86; Carroll vs. Paul's adm'r, 16 Mo., 241-2; Fine vs. St. Louis Schools, 30 Mo., 176; Anderson vs. Kinchelor, 30 Id., 525; Rose vs. Spies, 44 Id., 23.


SHERWOOD, Judge, delivered the opinion of the court.

Action on two promissory notes, made by defendant, Murdock, under the name and style of Murdock & Dickson, dated respectively, September 15th and 17th, 1873, each for $5000, the first payable 90 days, and the second 60 days after date, to the order of defendant, Armstrong, and by him endorsed in blank. The notes are precisely alike with the above noted exceptions, and the following is a copy of one of them, as presented in the court below.

$5000.

St. Louis, Sept. 17 th, 1873.

Sixty days after date we promise to pay to the order of David H. Armstrong, Five Thousand Dollars, at Capital

With interest at 10 per cent. per annum after maturity.

Bank, St. Louis, Mo. Value received.

No.
Murdock & Dickson.

Due

The petition contained two counts, each based on one of the notes. The notes were printed forms, but had no blanks for the rate of interest. With the exception of the words in these notes, which I have italicized, the residue were in print. By consent of parties, the original notes are before us, and it is plain to even casual observation, that the entire line in reference to interest, was written with ink of a different color, from that with which the legitimate blanks of the notes were filled. And the interest clauses in addition to that are written above the line, and in such a way as to be obvious to inspection.

[62 Mo. 62]

Judgment by default was taken against Murdock.

Armstrong answered, admitting the genuineness of his endorsement; but alleging as special matters of defense, that the notes had been altered without his knowledge, authority, or consent, by inserting therein the words: “With Int. at 10 per cent. per annum after maturity.”

The reply of the plaintiff denied the new matter contained in the answer.

There was a trial by jury, resulting in a verdict and judgment for the defendant.

There was some conflict of testimony, but the evidence tended strongly to establish the defendant's allegation that the notes had been subjected to an unauthorized alteration by Osborne, the book keeper of Murdock, at the request of the latter, after they had been put into circulation.

And there was testimony tending to show that the alleged alteration took place, after the notes had passed into the hands of the plaintiff, and while the notes were in the custody of its cashier; and that the act was done in the presence of that officer; and there was testimony of a contrary effect. And there was testimony also, tending to show that the defendant had never seen the notes after endorsing them, until suit brought; and there was testimony of an opposite character, to the effect that defendant had seen and examined one or both of the notes; and that some weeks thereafter he had promised to pay them, remarking that the bank was amply secured, and was getting ten per cent. interest for its money.

The court refused all the instructions asked on behalf of the plaintiff, ten in number, and gave the following instructions on the part of the defendant:

“1st. The court instructs the jury that if they believe from the evidence in the cause that the promissory note, dated 13th September, 1873, read and shown to the jury in the case, was made by the defendant Murdock, and endorsed by the defendant, Armstrong, and delivered by him to his co-defendant, Murdock, for the purpose of enabling Murdock, the maker, to raise money thereon for his own use; and if they

[62 Mo. 63]

shall further believe from the evidence that after the defendant Armstrong had so endorsed and delivered said note to said Murdock, the words and figures, “with interest at 10 per cent. per annum after maturity,” now appearing in said note, were written therein without the knowledge, consent or authority of the defendant Armstrong, by said Murdock, or by any agent or clerk of his, whether done in the presence of any officer or agent of plaintiff, or not, and whether with or without the knowledge of the plaintiff, the verdict should be for the defendant Armstrong on the second count.”

“2d. The court instructs the jury that if they believe from the evidence in this case that the promissory note, dated 17th September, 1873, read and shown to the jury in this case, was made by the defendant Murdock, and endorsed by the defendant Armstrong, and delivered by him to his co-defendant Murdock for the purpose of enabling the maker to raise money thereon for his own use; and if...

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57 practice notes
  • Newco Land Co. v. Martin, No. 40289.
    • United States
    • United States State Supreme Court of Missouri
    • June 14, 1948
    ...Co. v. Donovan Commission Co., 195 Mo. 262, 94 S.W. 527; The International Bank v. The German Bank, 71 Mo. 183; Capital Bank v. Armstrong, 62 Mo. 59. (12) The plaintiffs' remedies are in nowise prejudiced by the fact that after Newco's check had been deposited in the defendants' bank accoun......
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • January 20, 1899
    ...P. 48; Territory v. Evans, 2 Idaho 425, 17 P. 139; Terry v. Shiebly, 64 Ind. 106; Glass v. Gelvin, 80 Mo. 297; Capital Bank v. Armstrong, 62 Mo. 59; Moffat v. Conklin, 35 Mo. 453; Wade v. Hardy, 75 Mo. 394; Frederick v. Kinzer, 17 Neb. 366, 22 N.W. 770; Marx v. Schwartz, 14 Or. 177, 12 P. 2......
  • Whetsel v. Forgey, No. 27304.
    • United States
    • United States State Supreme Court of Missouri
    • August 6, 1929
    ...S.W. 1115; Fisher v. Cutter, 20 Mo. 206; 20 Cyc. 1443; 12 R.C.L. 1081; Grafeman Dairy Co. v. Bank, 288 S.W. 359; Capital Bank v. Armstrong, 62 Mo. 59; Handley v. Barrow, 68 Mo. App. 623; Holland v. Story Co., 192 N.W. 402; Marting v. Oliver, 247 S.W. 598; Stephenson v. Nelson, 243 S.W. 1069......
  • Waeckerley v. Colonial Baking Co., No. 22566.
    • United States
    • Court of Appeal of Missouri (US)
    • February 6, 1934
    ...evidence where no ground for the objection to it is stated. [Hall v. Gallemore, 138 Mo. 638, 40 S.W. 891; Capital Bank v. Armstrong, 62 Mo. 59; State National Bank of St. Louis v. Anderson (Mo. App.), 198 S.W. 511.] It has been held repeatedly that objections such as "I object," "I object t......
  • Request a trial to view additional results
57 cases
  • Newco Land Co. v. Martin, No. 40289.
    • United States
    • United States State Supreme Court of Missouri
    • June 14, 1948
    ...Co. v. Donovan Commission Co., 195 Mo. 262, 94 S.W. 527; The International Bank v. The German Bank, 71 Mo. 183; Capital Bank v. Armstrong, 62 Mo. 59. (12) The plaintiffs' remedies are in nowise prejudiced by the fact that after Newco's check had been deposited in the defendants' bank accoun......
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • January 20, 1899
    ...P. 48; Territory v. Evans, 2 Idaho 425, 17 P. 139; Terry v. Shiebly, 64 Ind. 106; Glass v. Gelvin, 80 Mo. 297; Capital Bank v. Armstrong, 62 Mo. 59; Moffat v. Conklin, 35 Mo. 453; Wade v. Hardy, 75 Mo. 394; Frederick v. Kinzer, 17 Neb. 366, 22 N.W. 770; Marx v. Schwartz, 14 Or. 177, 12 P. 2......
  • Whetsel v. Forgey, No. 27304.
    • United States
    • United States State Supreme Court of Missouri
    • August 6, 1929
    ...S.W. 1115; Fisher v. Cutter, 20 Mo. 206; 20 Cyc. 1443; 12 R.C.L. 1081; Grafeman Dairy Co. v. Bank, 288 S.W. 359; Capital Bank v. Armstrong, 62 Mo. 59; Handley v. Barrow, 68 Mo. App. 623; Holland v. Story Co., 192 N.W. 402; Marting v. Oliver, 247 S.W. 598; Stephenson v. Nelson, 243 S.W. 1069......
  • Waeckerley v. Colonial Baking Co., No. 22566.
    • United States
    • Court of Appeal of Missouri (US)
    • February 6, 1934
    ...evidence where no ground for the objection to it is stated. [Hall v. Gallemore, 138 Mo. 638, 40 S.W. 891; Capital Bank v. Armstrong, 62 Mo. 59; State National Bank of St. Louis v. Anderson (Mo. App.), 198 S.W. 511.] It has been held repeatedly that objections such as "I object," "I object t......
  • Request a trial to view additional results

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