Evans v. Foreman

• Decision Date: 31 May 1875
• Parties: THOMAS D. EVANS, Plaintiff in Error, v. LUTHER T. FOREMAN, Defendant in Error.
• Court: Missouri Supreme Court

60 Mo. 449

THOMAS D. EVANS, Plaintiff in Error,

v.LUTHER T. FOREMAN, Defendant in Error.

Supreme Court of Missouri.

May Term, 1875.

Error to Linn Circuit Court.

C. W. Bell, for Appellant, cited in argument 2 Pars. Bills & N., pp. 570, 571; Hervey vs. Hervey, 15 Minn., 357; Nevins vs. DeGrand, 15 Mass., 436; Kountz vs. Kennedy, 63 Penn. St., 187; Drakes vs. Fray, 7 Bush Ky., 273.

George W. Easley, with Alex. W. Mullins, for Defendant in Error, cited in argument, 1 Greenl. Ev., § 565; 2 Pars. Notes & B., 545; Haskell vs. Champion, 30 Mo., 136; Britton vs. Dierker, 46 Mo. 591; Holmes vs. Trumper, 22 Mich., 427; 7 Am. Rep., 661; Whitmer vs. Frye, 10 Mo., 348; Fulmer vs. Seitz, 68 Penn. St., 237.

SHERWOOD, Judge, delivered the opinion of the court.

Action on promissory note. Plea, non est factum, accompanied by special and explanatory statement to the effect that the note was signed by defendant as surety of his co-defendant Johnson, and that after issue the instrument received an unauthorized alteration by the addition thereto of the words; ““after due 10 per cent.” Suit discontinued as to maker Johnson. There was no denial of the allegation of the petition that certain payments on the note sued, had been made by the defendant.

The reply alleged that the note, by mistake, was not drawn in accordance with the intention of parties; that the correction was made in conformity to such intention, and that defendant, when made aware of, ratified the act.

There was evidence in support of the plaintiff's and of the defendant's allegations; that of the former showing that, discovering the alleged mistake, plaintiff had mentioned the matter to the maker, who, in the absence of the surety, and in good faith, had added the additional words, and that, being informed of the alteration, defendant had approved thereof and promised to pay and offered land in payment of the note.

It would be a hopeless task to endeavor to reconcile, and a fruitless one to even compare the numerous conflicting decisions, and oftentimes fine spun distinctions, of which the alteration of promissory notes and the legal consequences flowing therefrom, have been the prolific theme.

This court, in the case of Haskell vs. Chamption (30 Mo., 136) became the enunciator of a doctrine, on this point, which for freedom from embarrassing complications, facility of its application, and as preventing fraud even in its incipient stages, by putting an absolute interdict on all unauthorized tamperings--placing thereby the holders of paper under the strong bonds of pecuniary self-interest to keep it entirely intact--commends itself to our cordial approbation.

Judge Scott, in delivering the opinion of the court in that case, remarks with much force: “As the nature and purposes of contracts require that they should pass to the hands of those who are interested in altering them, to the prejudice of those who execute them, and as the facilities for making alterations are numerous and the difficulty of proving them great, all means should be employed to impress on the minds of those who are in possession of such paper a sense of its inviolability.”

The Supreme Court of Pennsylvania, has pursued in this regard, the same line of decision as our own court. In Moore vs. Lessee of Brickham & West (4 Binn., 1) it is said: “Without the consent of all parties, the most trifling alteration cannot be made.”

In Marshall vs. Gougler, (10 Serg. & R., 164), the question at issue was whether the witnesses had put their names to the original bill by the procurement of the obligee, and in the absence of the obligors, or did they intend to put their names to the assignment to authenticate that, and by their own mistake, or the mistake of the obligee, subscribe their names to that they never designed to attest; and there the appellate court condemned the charge of the lower one, which told the jury in substance that if the names of the witnesses were procured to be put to the note by the obligee, with a fraudulent intention, with design to injure, etc., it would avoid the note, but the note would not be void if the procurement of their signatures was without such intent, remarking: “But such is not the law, for whether there was a design to defraud or not, however the act might be done in ignorance and in innocence, still this falsified authentication of the instrument would avoid it.”

In Miller vs. Gilleland, 19 Penn. St., 119, speaking of these alterations, the court says, * * *: “To tolerate an attempt to reform a security by the rash and it may be secret act of the creditor, would change the position of the debtor and subject him to risk and trouble which ought not to be imposed on him. It would...