First Nat'l Bank of Springfield v. Fricke

• Court: Missouri Supreme Court
• Writing for the Court: SHERWOOD
• Citation: First Nat'l Bank of Springfield v. Fricke, 75 Mo. 178 (Mo. 1881)
• Decision Date: 31 October 1881
• Parties: THE FIRST NATIONAL BANK OF SPRINGFIELD, Appellant, v. FRICKE.

75 Mo. 178

THE FIRST NATIONAL BANK OF SPRINGFIELD, Appellant,

v.FRICKE.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

This was an action on a promissory note. The defendants, who had signed as joint makers with Job Newton, denied liability on the ground that the note had been altered without their knowledge or consent. The evidence adduced at the trial showed that the note was made for the benefit of the Odd Fellows' Building Association, and was discounted at the plaintiff bank; that on the day it became due McElhaney, the president of the plaintiff bank, told Newton, who was president of the association, that he wanted to hold the association on the note, and requested Newton to alter the note; that Newton did alter it by adding the abbreviation: “Pres'd't O. F. B. Ass'n,” and “Pres'd't,” as shown in the opinion of the court; that these abbreviations meant and were intended to mean “President of the Odd Fellows' Building Association;” that suit was afterward brought upon this note in the name of plaintiff against the association by Boyd, the regularly employed attorney of plaintiff, in the probate and common pleas court of Greene county, and that plaintiff had received $600 from the association in part payment of the note. Other facts appear in the opinion.

Chas. A. Winslow and Boyd & Vaughan for appellant.

C. W. Thrasher for respondents.

I.

SHERWOOD, C. J.

Action on a promissory note, which was in these words:

“$1,500

SPRINGFIELD, Mo., July 8th, 1876.

Four months after date we or either of us promise to pay to the order of J. Newton, ‘Presdt.,’ at the First National Bank of Springfield, Missouri, $1,500, for value received, without defalcation or discount, with ten per cent interest per annum after due until paid.

J. NEWTON, ‘Presdt. O. F. B. Ass'n.’

J. W. MCCULLAH,

D. L. GRIFFITH,

G. W. FRICKE.”

Indorsed as follows:

“J. NEWTON, Presdt.'

The note as originally drawn, was:

“$1,500.

SPRINGFIELD, Mo., July 8th, 1876.

Four months after date we or either of us promise to pay to the order of J. Newton, at the First National Bank of Springfield, Missouri, $1,500 for value received without defalcation or discount, with ten per cent interest per annum after due until paid.

J. NEWTON,

J. W. MCCULLAH,

D. L. GRIFFITH,

G. W. FRICKE.”

Indorsed as follows:

“J. NEWTON.”

The defense was non est factum. The evidence shows clearly that the note, long after its execution, was altered by Job Newton at the request and in the presence of McElhaney, president of plaintiff, and in the absence of and without the knowledge or consent of defendants.

This unauthorized alteration so changed the instrument that defendants were no longer bound thereby. A very stringent rule has long been maintained by this court in regard to such alterations of written instruments--a rule which conforms to the policy of the law, and very properly forbids any tampering with written instruments, by those to whom their custody is necessarily confided. In Haskell v. Champion, 31 Mo. 136, one B. F. C. C., a member of the firm of Champion & Co., executed a promissory note in his own name, and procured the signature of two persons thereon, as his indorsers. Subsequently before procuring sale of the note, without their knowledge, he added to his signature the words “and Co.,” thus making it B. F. C. C. & Co., and the indorsers were held discharged, although it was contended that the words ““& Co.” did not vary the contract, as there was no such firm as B. F. C. C. & Co., and that the added words might “be treated as a flourish, meaning nothing.” In that case, however, Scott, J., in speaking for the court, said: “The law, in dealing with the subject of alteration of written instruments, looks further than to the materiality or immateriality of the alteration. Aware of the danger of countenancing the most trifling change, it has not permitted those intrusted with such instruments to alter them and afterward defend their conduct by alleging the immateriality of the alteration. There is a motive to such conduct, and if an alteration of an instrument is immaterial and believed to be so, there can be no inducement to the act. Every man's sense of justice and propriety must teach him that it is wrong to alter in any way an instrument made by another which is to bind him. 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 is great, all means should be employed to impress on the minds of those who are in the possession of such paper, a sense of its inviolability.” These remarks of the learned judge, considering the circumstances in which they were made; considering that it was contended that the words “& Co.” were immaterial; were a “flourish meaning nothing,” cannot be regarded as mere obiter, since they were necessary to a proper determination of the case in all its aspects.

The doctrine thus laid down has been repeatedly followed since. In Evans v. Foreman, 60 Mo. 449, we said: * * “If mistakes do arise in the preparation of written instruments, aside from the consent of all parties to the needed correction, the courts of the country alone can furnish adequate redress, and we will not give sanction or countenance to the attempts of an interested party to effect by his own hand the desired reformation; as an honest blunder of this sort, if upheld in one instance, might necessitate sanctioning an alteration having that appearance but which from the infirmity of human testimony, might be grossly otherwise.” In German Bank v. Dunn, 62 Mo. 79, we held that though the alteration was neither material nor fraudulent, yet the maker was discharged. And in the more recent case of Moore v. Hutchinson, 69 Mo. 429, we said: “The payee of the note had no right to alter the note in the slightest particular without the consent of all who were interested; and such unwarranted alteration rendered the note null in his hands, no matter how pure his motive in making the alteration.”

And the ruling enunciated in the cases cited as to a written contract being avoided by an immaterial or the “slightest” alteration, is no new thing under the sun. This has been the rule in New Jersey since 1824, where it is held that any alteration of an instrument by the party claiming an interest under it, avoids the instrument. Den v. Wright, 2 Halst. 175; Bell v. Quick, 1 Green 312; Hunt v. Gray, 6 Vr. 227; s. c., 10 Am. Rep. 232. In the last case, Beasley, C. J., said: “The reasons for this rule are obvious and of the most solid character. In its absence the inducement to fraud would be very strong, and public policy requires that, in the language of Lord Kenyon, ‘No man shall be permitted to take the chance of committing a fraud without running any risk of losing by the...