Conner v. Fleshman

• Court: West Virginia Supreme Court
• Writing for the Court: MAXWELL, J.
• Citation: Conner v. Fleshman, 4 W.Va. 693 (W. Va. 1871)
• Decision Date: 31 January 1871
• Parties: Thomas M. Conner v. John A. Fleshman, for use, &c.

4 W.Va. 693

Thomas M. Conner

v.John A. Fleshman, for use, &c.

Supreme Court of Appeals of West Virginia.

January Term, 1871.

1. Where the plea of non est factum is sought to be made out on the grounds of the mutilation of the instrument, the question whether it has been mutilated is for the jury and not for the court, and it is proper to permit it to go to the jury without first requiring the plaintiff to explain the alteration apparent on its face.

2. If no objection is made to the offering in evidence of a copy of a supposed bond sued on, without evidence of the loss or destruction of the original, on the trial below, it is too late to make the objection in the appellate court.

3. Where a plea of non est factum seeks to avoid a written instrument on the ground of alteration, it is proper for a copy of the paper as it was proved, by the defendant, to have been originally, to go to the jury to determine whether the original had been altered or not.

4. F., for the use of S., brings a suit of debt against C. The declaration contains three counts; the first describes the instrument as a writing obligatory, the second as a note, and the third as a writing obligatory, profert of a copy of which is made, because the original has been altered by the erasure of the words "and seals," without the knowledge or privity of F. or S., subsequent to the execution of the paper. Non est factum is pleaded, and the alteration is the grounds of the defense. It is proved on the trial that the alteration was made without the knowledge or consent of F. and S., or of C. Held:

That it was not error to instruct the jury that the plaintiff was entitled to recover, if they believed from the evidence, that the change of the instrument from a bond to a note was made after its execution, by or with the knowledge or consent of the defendant, or that it was not made by the obligee or assignee, or by their procurement.

5. A judgment rendered in June, 1870, provides for the recovery of interest from 1866, which is held to be erroneous under sections 14 and 16, chapter 131, page 627, Code of West Virginia. But such error can be corrected in the court below by section 5 of chapter 134, and in this court by section 6 of same chapter, and it is accordingly corrected.

This was an action of debt in the circuit court of Greenbrier county, by John A. Fleshman, for the use of John H. Smoot, against Thos. M. Conner, brought to January rules, 1867, claiming 400 dollars. A trial was had in December, 1869, and verdict for the plaintiff. This verdict was set aside on motion of the defendant, and a new trial awarded, with leave to either of the parties to amend their pleadings. The amended declaration contained a demand for 600 dollars. The first count was for 200 dollars, on a sealed instrument, executed on the 24th of August, 1866; the second count was for 200 dollars, secured by a promissory note of like date, and the third count was for 200 dollars, the amount of a sealed instrument, a copy of which was shown to the court, "the original of which said writing obligatory, the said plaintiff cannot now produce to the court, because the words and seal were erased from the body thereof, subsequent to its execution, by some party or parties, to the said plaintiff unknown, and who did the same, without his privity or consent," the date of which was that heretofore mentioned, the remaining portion of the 600 dollars,

A demurrer to the declaration was overruled.

Four pleas were filed by the defendant. The first plea was non est factum. The second alleged that the instrument sued on, was executed in consideration of confederate money, and hence illegal, &c. The third plea, after craving oyer, alleged that there was fraud in the procurement of the instrument, &c. As this plea seems to have been abandoned by the plaintiff in error, the defendant below, it is unnecessary to notice it further. The fourth plea alleged, that after the defendant had signed the supposed, written instrument sued on, and while it was in the possession of the plaintiff, it was altered in a particular manner, by erasing the words "and seal," and affixing a certain scroll or seal, by and near the defendant's signature, without the knowledge or consent of the defendant, and that the erasure and affixing of the scroll were not made in correction of any mistake, &c.? whereby, the written instrument was not the act of the de- fendant, and from the time of the alteration thereof, it was void in law.

Issue appears to have been joined on all the pleas, after objections to the filing thereof, made by the plaintiff, had been overruled.

The jury found the following verdict: "We, the jury, find for the plaintiff the debt, in the declaration mentioned."

A motion was made to set aside the verdict and grant a new trial. The plaintiff released the sum of 400 dollars, with interest thereon, from the 24th of August, 1866, parcel of the debt demanded, "the said plaintiff having claimed on the trial, that the several counts of his declaration referred to but one and the same debt."

The court overruled the motion for a new trial, and rendered judgment for 200 dollars, with interest thereon, from the 24th day of August, 1866, on the 24th day of June, 1870.

All the evidence which appears in the record, and the instructions refused, as also the instructions given by the court, as they are set out in the bill of exceptions, are as follows:

"The plaintiff offered in evidence to the jury a paper in the words and figures, viz:" [$200.]

"On demand, for value received, I bind myself, hares, administrators or assigns, to pay unto J. A. Fleshman, the just and full some of two hundred dollars, for value received

of him. Given under my hand August 24th, 1866.

"[Seal.]"

[" Stamp.] Thomas M. Conner. []

"Endorsement. I assign the with note to John II. Smoot, October 10th, 1866. J. A. Fleshman."

"Upon which paper there appears an erasure or obliteration of the words 'and seal' immediately after the word 'hand'; that said, erasue or obliteration seems to have been made by scratching the said words 'and seal' from said paper, so as to remove them effectually therefrom. And said paper further shows upon its face, that the second scroll op- posite to which occurs the name of the defendant Conner, has been made with ink of a different color from that with which the paper was written and signed, but corresponding with the ink with which the assignment to Smoot was written as endorsed on said paper. To the reading of this paper as evidence, in support of said first count in the plaintiff's declaration, the defendant objected, and the court sustained said objection, to which ruling of the court the plaintiff excepted. The plaintiff then offered said paper in evidence under the second count of his said declaration, to which the defendant objected, but the court overruled said objection, and permitted said paper to be read to the jury under the second count, whereupon the defendant excepted. The plaintiff then placed the defendant upon the stand as a witness, who testified that the paper marked B, which is in the words and figures following, to wit: ["$200.]

"On demand, for value received, I bind myself, hares, administrators or assigns, to pay unto J. A. Fleshman, the just and full some of two hundred dollars, for value received of him.

" Given under my hand and seal, August 24th, 1866.

"(A copy.) Thomas M. Conner. [Seal.], "

was a correct copy of a bond, executed by him to the plaintiff, on the 24th clay of August, 1866; that he did not know whether or not the paper marked A, the paper first above mentioned, had been signed by him or not; that he did not know whether he had ever seen the paper marked A; that the signature thereto looked like his signature; that the paper B was a copy of the paper A, except that the words "and seal" appeared to have been erased from the body of the latter, and that there was no erasure in the paper, which he had executed to the plaintiff on the 24th August, 1866, at the time of its execution. The plaintiff then offered said papers, marked A. and B, in evidence to the jury, under the third count of his declaration, to the reading of the former of which the defendant objected, which objection the court overruled; whereupon the defendant excepted. The plaintiff himself was then placed upon the stand, who testified that the paper B was a copy of the paper which had been executed to him by the defendant, on the 24th August, 1866, except as to the words 'and seal, ' in the body thereof, as to which he could not testify positively, as he did not know whether they were in the original instrument or not; that the original paper was the paper A, but he could not say whether or not there were any erasures in the same when he received it; that he had never altered said paper, nor had it been altered with his knowledge or consent; that the...