Drum v. Drum
| Decision Date | 28 November 1882 |
| Citation | 133 Mass. 566 |
| Parties | Hugh Drum v. Patrick Drum |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Barnstable. Contract upon a promissory note for $ 100, dated October 19, 1869, payable on demand to the plaintiff, or order, signed by the defendant, and witnessed. Writ dated September 28, 1878. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:
The plaintiff offered the note in evidence; and the signatures of the defendant and of the attesting witness were proved. It appeared that the note, after its delivery to the plaintiff who could neither read nor write, had been changed in the following respects: the figures "$ 100" had been made to read "$ 136," or "$ 156;" the word "dollars" had been made to read "fifty," or "thirty," the word "six" being interpolated thereafter; and the word "on" changed to "dollars," and another word "on" interpolated before the word "demand."
The plaintiff testified that he knew nothing about the erasures and changes above described, and neither made them himself nor directly or indirectly authorized the same to be made and the agent of the plaintiff, in whose possession the note was left for a time, testified the same as the plaintiff, as to her knowledge of, and relation to, said erasures and changes.
The defendant objected that the plaintiff was not entitled to recover upon the note, unless he first explained and accounted for said changes and erasures; and that there was a variance between the plaintiff's allegations and the proofs.
The plaintiff asked the judge to instruct the jury as follows: "If the jury believe that said $ 100 note was altered without the knowledge or consent of the plaintiff, and without his agency, directly or indirectly, it is not, in law, an alteration, but a mutilation or spoliation; and the note would be good for, and according to, its original tenor."
The judge declined to give this instruction; but instructed the jury as follows: "The note of $ 100, appearing to be materially altered, is void, unless the plaintiff proves that it was altered by consent of the defendant, or proves the circumstances of its alteration, as well as that he did not make or procure it; the alteration would not be sufficiently explained by proof that the plaintiff did not make, direct or procure it."
The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.
Exceptions sustained.
J. M. Day, for the plaintiff.
H. P. Harriman, for the defendant.
OPINION
The note declared on in this case was for $ 100, signed by the defendant, and payable to the plaintiff, or order. Upon the production of the note, it appeared to have been changed from a note for $ 100 to a note for $ 136,...
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