OPINION
ALBERT, C.
Lucy C
Colby brought suit against Mary J. Foxworthy to foreclose a
real estate mortgage executed by the latter to the Lombard
Investment Company to secure the payment of a certain bond
and interest coupons, which, with said mortgage, had been
assigned and transferred to the plaintiff. The defendant
answered, alleging, in substance, that after the execution
and delivery of the bond and mortgage, and without her
knowledge or consent, the same had been fraudulently altered
by the mortgagee by inserting therein the word
"gold" before the word "dollars." The
plaintiff filed a reply, denying the fraudulent alteration,
and alleging certain facts relied on as an estoppel against
the defendant to urge the alteration of the instruments as a
defense to the suit. At the request of the defendant, a jury
was called to try the issues of fact. In addition to a
general verdict in favor of the defendant, the jury returned
a special finding to the effect that the bond and mortgage
"had been wrongfully altered and changed, without the
knowledge or consent of the defendant, by
inserting therein the word "gold" before the word
"dollars." The next step in the litigation appears
from the following, taken from the record: "This cause
came on to be heard before the court and the jury and the
jury having determined the fact submitted to them in favor of
the defendant, Mary J. Foxworthy, finding that the note and
mortgage in controversy in this case were wrongfully altered
and changed after the execution thereof, without the
knowledge or consent of the defendant, Mary J. Foxworthy, by
the insertion of the word 'gold' before the word
'dollars' as used and appears in said note and
mortgage; this cause comes on to be further heard before the
court upon the questions of law arising herein, and the
court, being fully advised in the premises, finds the
following facts and conclusions of law thereon herein fully
set
forth: * * * (2) That after the execution and delivery by the
said Mary J. Foxworthy of the coupon bond and mortgage
aforesaid the same was altered and changed without her
knowledge and consent by some one stamping the word
'gold' immediately in front of the word
'dollars' wherever the same appeared in either the
said note or said mortgage with a rubber stamp in red ink,
thereby making the said indebtedness evidenced by said bond
and mortgage payable in gold, which was a different contract
than was made by the said Mary J. Foxworthy at the time of
the execution and delivery of the said bond and mortgage as
aforesaid. * * * (6) The court further finds that after the
execution and delivery of the bond and mortgage described
herein the said defendant, Mary J. Foxworthy, paid the
interest semi-annually, as represented by the coupons to said
bond attached, up to and including the interest coupon which
became due on the first day of May, 1896, and that all of
said coupons so paid by the defendant were delivered to her,
and that all of such coupons so paid by and delivered to her
contained the word 'gold' stamped with a red ink
stamp as herein found, and that thereby from the date of the
payment of the first coupon on said bond attached down to the first day of May, 1896, the said defendant Mary
J. Foxworthy might have had knowledge of the change and
alteration in said bond and mortgage contained as herein
described, exercising due care and diligence, but made no
complaint thereof, but continued to pay said coupons in
manner and form as therein written, and so altered and
changed. Wherefore the court finds the following conclusions
of law: (1) That said alteration of such bond and mortgage
described herein was a material alteration and would
invalidate the said contract of the said Mary J. Foxworthy,
and the plaintiff would not be entitled to recover thereon,
were it not for the fact that it was the duty of the said
defendant, Mary J. Foxworthy, upon the discovery of such
alteration, to have immediately complained and refused
payment thereon, but having so failed and having continued to
pay, having knowledge of such alteration and change, she
thereby ratified such alteration and change in such contract
as herein found, and could not be heard to complain at this
time, but would be bound thereby as though said bond and
mortgage were in the same condition as at the time of their
execution and delivery."
From a
decree of foreclosure the defendant mortgagor prosecuted
error to this court, where the decree was reversed and the
cause remanded for further proceedings, this court holding
that the alteration was material and that the defendant
mortgagor was not estopped to urge such alteration as a
defense. See Foxworthy v. Colby, 64 Neb. 216, 89
N.W. 800. The plaintiff thereupon filed an amended petition
in the district court, alleging, among other things, that the
bond and mortgage were given without the word
"gold" therein, but that after the execution
thereof, some person, unknown to plaintiff or the mortgagee
and without their knowledge or consent, inserted the said
word therein, and asked that the bond and mortgage as they
stood originally, and before such spoliation, be enforced. A
motion to strike the amended petition on the ground that it
was a departure from the cause of action alleged in the
original petition was sustained. The...
