Gerrish v. Glines

• Decision Date: 13 August 1875
• Citation: 56 N.H. 9
• Parties: Gerrish v. Glines.
• Court: New Hampshire Supreme Court

56 N.H. 9

Gerrish v. Glines.

Supreme Court of New Hampshire

August 13, 1875

Promissory note---Fraudulent alteration.

Where a negotiable promissory note was made payable upon a condition and the condition was written below the note on the same piece of paper---Held, that the note and condition were parts of a single entire contract, and that the fraudulent removal of the condition, by tearing the paper, was such a material alteration as rendered the note void in the hands of a bona fide holder

From Merrimack Circuit Court

ASSUMPSIT to recover the amount of two promissory notes, each dated July 15, 1872, and payable to O. J. Stickles & Co., or bearer, one for $66.74, six months from date with use, and the other for $250, one year from date with use, and each signed by the defendant. The action was sent to a referee by order of court, who at this term makes report that he finds due from the defendant to the plaintiff the amount confessed and no more; and he reports his conclusions of fact and law as follows: "The plaintiff's writ is dated March 11 1874, with general count, and the two notes above described were specified as plaintiff's claim, sought to be recovered in this suit. The defendant confesses the first note for $66.74; and as to the second note described, for $250, says he never promised, etc. Reference to the writ, specification, plea, and confession on file may be had. The plaintiff read said notes and put them in as evidence, and rested his case. On the back of said note for $66.74, is written and crossed as follows: "Demand notice waived. "Leonard Gerrish."

The other note, for $250, was written on the back, "Demand notice waived. Leonard Gerrish." The defendant offered to prove, did prove, and I find that when said defendant made and signed said note of $250, there was written on the same paper with said note, and under the defendant's signature to said note, and signed by said defendant and the payee of said note, the following, to wit,---"Condition. This

note is given on the following conditions: W. F. Glines, of the first part, agrees to work his territory faithfully and well; and O. J. Stickles & Co., of the second part, agree if W. F. Glines, of the first part, does not make one thousand dollars over and above what he pays for said territory, then the above note is void and of no effect. [Signed] O. J. Stickles & Co. W. F. Glines."

The plaintiff's counsel objected to the evidence of this condition, without showing first that the plaintiff had knowledge of it at the time he took or purchased said note. The evidence was ruled in, notwithstanding the objection, and the plaintiff took exceptions to said ruling. It appeared, from cross-examination of the defendant, that he did not "work all his territory faithfully and well," according to said condition, and from the plaintiff's testimony, without exception, that when he purchased said note, no such condition was annexed to said note, and that he had no knowledge of this condition or agreement at that time, and that he paid a fair and full consideration for said note.

I find that said condition had been torn off, and before the plaintiff purchased said note. And I rule, under the foregoing facts, that such alteration avoided the note in the hands of an innocent indorsee, and that the plaintiff cannot recover said note in this suit under any view.

The questions of law thus raised were transferred to this court for determination by FOSTER, C. J.

Barnard, for the plaintiff. Pike & Blodgett, for the defendant

LADD, J

Upon the facts found by the referee in this case, I am of opinion that his conclusions of law were correct, and that there should be judgment on the report accordingly. It is claimed by the plaintiff, in effect, that the note, and the condition written below it on the same piece of paper, are to be regarded as evidence of two distinct contracts, and treated as two separate instruments. I think that view cannot be sustained. The memorandum is entitled "Condition," and its first words are, "This note is given on the following conditions," etc. It seems to me beyond all question, that the condition is one part of a single entire contract, of which the note is the other; that the whole paper together must be treated as a single instrument and that any division of it, whereby a...