Duker v. Franz

Decision Date08 October 1870
Citation70 Ky. 273
PartiesDuker v. Franz.
CourtKentucky Court of Appeals


DEMBITZ & WEHLE, For Appellant,


18 B Monroe, 628, Lisle v. Rogers.

19 Pennsylvania, 119, Miller v. Gilleland.

13 Pick. 165-168, Wheelock v. Freeman.

33 Mississippi, 406, Owings v. Arnet.

11 Iowa (3 Withrow), 767, Van Horn & Baker v. Bell.

13 Mees. & Welsby, 623, Gore v. Gibson.

15 Maine, 357, Hervey, & c. v. Hervey.

15 Pick. 239, Granite Co. v. Bacon.

10 Wendell, 93, Boyd v. Brotherson.

5 Gilman, 252, Walters v. Short.

8 Adolphus & Ellis, 215, Knight v. Clemens.

1 New Hampshire, 157, Sherburne v. Shaw.

1 Bor. & Puller's New Rep. 252, Champion v. Plummer.

1 Howard, Salmon Falls Man. Co. v. Goddard.

2 Barbour's Chancery Reports, 119.

6 Massachusetts, 519, Hunt v. Adams.

8 Pick 246, Smith v. Dunham.

1 Greenleaf's Reports, 357, Hale v. Reese.

2 New Hampshire, 543, Bowers v. Jewell.

3 Espinasse, 246, Kershaw v. Cox.

1 Campbell, 74 1 Greenleaf, sec. 564

O. F. STIRMAN, For Appellee,


6 Hill, 443, Brown v. Butchers Bank.

6 Wendell, 443, Merchants Bank v. Spicer.

Story on Promissory Notes, section 121.



Duker, as the surety of Zahner, joined with him in the execution of a note to Shoenlaub for eight hundred dollars, due seven months after date. The note appears upon its face to have been originally dated February 1, 1868, and to have been changed to 1869 by making the figure 9 over the figure 8. The note having been assigned to Franz, he brought suit thereon in the Jefferson Court of Common Pleas.

Duker answered, and among other defenses pleaded that after the execution and delivery of the note its date had been altered, as above indicated, without his knowledge or consent, and that in consequence of said alteration was not his act and deed. The deposition of Zahner, the principal in the note, makes it clear that February 1, 1869, was the day upon which the note was executed. He states that the note was written by him; that he had no recollection of changing the date from 1868 to 1869; that he did not make such change, nor did he see it made by any one else; and that the note in its present condition is just as it was when he and Duker signed it, except as to said apparent change.

Upon the trial the court was asked to instruct the jury to the effect that if the alteration in the date was made after the execution and delivery of the note, without the knowledge or consent of Duker, either by the holder or with his permission, that the same was thereby rendered void, " though the change was made in order to correct a mistake." This instruction was refused; and it is urged with earnestness and ability that in this the court erred to the prejudice of appellant. It seems to be the correct doctrine that an alteration of a note after its execution and delivery will render it void in case said alteration is to any degree material; and if the true date of the note sued on was 1868 and it was altered to 1869, it can not be doubted but that such alteration was material.

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1 cases
  • Duker v. Franz
    • United States
    • Kentucky Court of Appeals
    • October 8, 1870

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