German Bank v. Dunn

Decision Date31 January 1876
Citation62 Mo. 79
PartiesGERMAN BANK, Appellant, v. SARAH E. DUNN, et al., Respondents.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court.

Finkelnburg & Rassieur, for Appellant.

The general rule regarding alteration in a material part of a bill or note does not include the change of the name of the payee. (Trigg vs. Taylor, 27 Mo., 245; see also, Huntington vs. Finch, 3 Ohio St., 445; Broughton vs. West, 8 Ga., 248.) And the alteration being an immaterial one, and for a lawful purpose, and with no improper motive, appellant is entitled to recover. (Lubbering vs. Kohlbrecher, 22 Mo., 596; Haskell vs. Champion, 30 Mo., 138; State vs. Dean, 48 Mo., 464.)A. M. Thayer, for Respondents.

SHERWOOD, Judge, delivered the opinion of the court.

This is a proceeding, having for its object the subjection of certain land, in which Mrs. Dunn, the chief defendant, has a separate estate, to the payment of two promissory notes for $536.45 each, payable respectively in 60 days, and in 4 months after date, to W. B. Harris & Co., which name, after the notes were signed and completed, and in the absence and without the knowledge of Mrs. Dunn, was erased by drawing the pen through it, and inserting in different ink, but apparently in the same handwriting, the name of Chas. E. Kircher,” the teller of plaintiff, for whose benefit the notes were made, in consequence of a worthless check drawn by Harris & Co., and which check the bank in whose favor it was drawn was compelled to pay.

There was no evidence that the name of Harris & Co. was erased and that of Kircher substituted with any sinister or fraudulent motive; nor was there any evidence on the other hand showing any authority from Mrs. Dunn to make the substitution referred to. The alteration was made, as before stated, after the notes were complete by erasing the name of one payee and substituting that of another. This was done in the absence and without the authority of Mrs. Dunn, and in the presence and at the instance of the attorney of the plaintiff. The testimony of a member of the firm of Harris & Co., who, acting for his firm, made the alteration, as well as the testimony of the husband, place the matter in a very clear light; and their testimony to the effect above stated, is strengthened, not only by the testimony of Mrs. Dunn, but the face of the note itself, which clearly shows that the name of the new payee was written with ink of a different color from that which filled the body of the note,...

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37 cases
  • Mo. Finance Corp. v. Roos et al., 21846.
    • United States
    • Court of Appeal of Missouri (US)
    • 8 March 1932
    ...surety, and he has a right to stand upon, the exact contract be made, and no one, not even a court, can change it in any respect. [Bank v. Dunn, 62 Mo. 79; Moore v. Hutchinson, 69 Mo. 429; Bank v. Fricke, 75 Mo. 178; Morrison v. Garth, 78 Mo. l.c. 427; Hord v. Tauhman, 79 Mo. l.c. 102; Evan......
  • Missouri Finance Corp. v. Roos
    • United States
    • Court of Appeal of Missouri (US)
    • 8 March 1932
    ...the surety, and he has a right to stand upon the exact contract he made, and no one, not even a court, can change it in any respect. [Bank v. Dunn, 62 Mo. 79; v. Hutchinson, 69 Mo. 429; Bank v. Fricke, 75 Mo. 178; Morrison v. Garth, 78 Mo. 434; Hord v. Taubman, 79 Mo. 101; Evans v. Foreman,......
  • Koons v. St. Louis Car Company
    • United States
    • United States State Supreme Court of Missouri
    • 2 April 1907
    ...... on the face of his contract was a nullifying alteration. Kelly v. Thuey, 143 Mo. 422; Bank v. Umrath, 42 Mo.App. 529; Hord v. Taubman, 79 Mo. 101; Evans v. Forman, 60 Mo. 449; Bank . Armstrong, 62 Mo. 59; Bank v. Dunn, 62 Mo. 79. (3) Where, as in the present case, a contract is signed in. duplicate, each of the ......
  • City of Brookfield v. McCollum
    • United States
    • United States State Supreme Court of Missouri
    • 9 April 1928
    ...of bond. State ex rel. v. Chick, 146 Mo. 645; Britton v. Dierker, 46 Mo. 591; Heim Brewing Co. v. Hazen, 55 Mo. App. 277; German Bank v. Dunn, 62 Mo. 79; Schuster v. Weiss, 114 Mo. 158; Nofsinger v. Hartnett, 84 Mo. 549. It has been held that want of knowledge of alteration on the part of t......
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