Elbert v. McClelland

• Decision Date: 20 February 1871
• Citation: 71 Ky. 577
• Parties: Elbert v. McClelland, & c.
• Court: Kentucky Court of Appeals

71 Ky. 577

Elbert v. McClelland, & c.

Court of Appeals of Kentucky.

February 20, 1871

APPEAL FROM WOODFORD CIRCUIT COURT.

JOHNSON & BROWN, PORTER & WALLACE, For Appellant,

CITED

1 Gal. C. C. Reports, 69, Cutts v. United States.

4 Term Reports, 320, Masters v. Miller.

2 Mason's C. C. Reports, 478, United States v. Spalding.

8 Cowen, 71, Lewis v. Payne.

3 Bibb 388, Fowler v. Halburt.

5 Monroe, 31, Bank of Limestone v. Penick.

3 Phillips's Evidence (ed. 1859), page 154.

11 Co. Reports, 27, Pigott's case.

BRECKINRIDGE & BUCKNER, For Appellees,

CITED

8 Georgia, 248, Broughton v. Vest.

1 Phillips on Evidence, side-page 604.

5 Har. & John. 41, Wickes v. Caulk.

4 Green, 212, Harlan v. Berry.

3 Ohio 445 4 Georgia, 95

6 Indiana, 152 2 E. D. Smith, 1.

2 New Jersey, 424. 1 Halstead, 215.

2 Johnson's Cases, 198, 200. 9 Alabama, 513.

4 Sneed (Tenn.) 55. 9 Missouri, 696.

22 Barb. (N. Y.) 647. 13 Maine, 386.

36 Mississippi, 455. 17 Georgia, 588.

34 Maine, 115. 20 Vermont, 205.

11 Connecticut. 531, Bailey v. Taylor.

OPINION

PRYOR CHIEF JUSTICE:

On the 5th of February, in the year 1870, the appellees, McClelland and wife, filed their petition in ordinary, in the Woodford Circuit Court, against the appellant, Elbert, on the following note, viz.:

" Ten days after date I promise to pay Mrs. M. B. McClelland five hundred and eighty-nine dollars sixty-five cents for hogs.

POLLARD ELBERT,

November 28, 1862. G. J."

The appellees filed an amended petition, " alleging that the note was executed by the appellant to Margaret B. McClelland for hogs sold and delivered him, and that the note was handed to her by the appellant in its mutilated condition; that G. J. Garth was never known in the transaction; and that if his name was ever on said note it was placed there before it came into appellees' possession, and was torn off without their knowledge or privity by the appellant Elbert, or by his procurement."

The appellant, as a defense to the action, relied upon the plea of non est factum, and that of payment. He alleges that his own name and that of G. J. Garth were upon the note when delivered to the appellees; and after its delivery (Garth being as much liable for the note as the appellant) Garth's name was fraudulently or intentionally torn off the paper, and the name of the appellant alone left on it.

The note on which this recovery was sought bears evidence of its having been mutilated, but whether or not this alleged mutilation exists was for the jury alone to determine. The initial letters G. and J. are all that seem to be left of the name of one of the obligors, and that part of the paper on which the remaining part of the name is alleged to have been written has been torn off either intentionally or by accident, or it may have been done by the consent of the obligors.

If an alteration or mutilation is made in or of a note by which the legal or equitable rights of the parties are affected, and this alteration or mutilation is caused by the act of the holder, and was intentional on his part, it invalidates the paper; and when the fact of the alteration or mutilation is established, and the proof does not disclose how, by whom, or when it was done, the holder must suffer, as the burden of proof is upon the party in the possession of the paper and attempting to enforce its payment to show how the alteration or mutilation occurred, and upon his failure to do so no recovery can be had upon it.

Phillips on Evidence, Cowen & Hill's notes, part 2, page 1318: " When a bond has been altered since its delivery, and in a material part, the onus is upon the obligee to show that it was done legally; the presumption in such cases usually is that the alteration was made by the obligee or with his assent."

The appearance of the note in this case, the original having been filed with the record, was sufficiently suspicious to make even the most careless cautious in receiving such paper, and should have at least induced the party to whom it was delivered to have made inquiry as to the cause of its mutilated condition. The name of one of the obligors seems to have been almost entirely torn off, and the appellee should never have received such paper without having some evidence of the cause of its mutilation.

In Byles on Bills, page 393, it is said: " That the burden of explaining an alteration imposes no hardship on the plaintiff, for if the bill was altered in his hands he may and ought to account for it; if before, then he took it with a mark of suspicion on its face, which ought to have induced him either to refuse it or to require evidence of the circumstances under which the alteration was made."

In the case of Simpson v. Stackhouse (9 Barr, 186), Supreme Court of Pennsylvania, the court says: " He who takes a blemished bill or note takes it with its imperfections on its head. He becomes sponsor for them, and though he may act honestly he acts negligently. It is his fault to take such a note, and the law presumes that he had not only satisfied himself of the innocence of...