Iron Mountain Bank of St. Louis v. Murdock

• Decision Date: 31 January 1876
• Citation: 62 Mo. 70
• Parties: IRON MOUNTAIN BANK OF ST. LOUIS, MO., Appellant, v. JOHN J. MURDOCK AND DAVID H. ARMSTRONG, Respondents.
• Court: Missouri Supreme Court

62 Mo. 70

IRON MOUNTAIN BANK OF ST. LOUIS, MO., Appellant,

v.JOHN J. MURDOCK AND DAVID H. ARMSTRONG, Respondents.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.Slayback & Haeussler, for Appellant, cited Putnam vs. Sullivan, 4 Mass., 45; Zimmerman vs. Rote, 75 Penn. St., 188; Nebecker vs. Cochrane, 48 Ind., 436; Ritter vs. Singmaster, 73 Pa., 400; 7 Mo., 231; Redlich vs. Doll, 54 N. Y., 234; Rainbolt vs. Eddy, 34 Iowa, 440; Garrad vs. Hadden, 67 Penn. St., 82; 43 Vt., 375; 53 Mo., 516; 54 Mo., 77; Whittemore vs. Obear, 58 Mo., 286-287; Gardiner vs. Harback. 21 Ill., 130-31; Workman vs. Campbell, 57 Mo., 53-55; Speake vs. United States, 9 Cranch., 29; Smith vs. Crooker, 5 Mass., 540; Ball vs. Dunsterville, 4 T. R. 313; Barrington vs. Bank of Washington, 14 Serg. & R., 405; Stahl vs. Berger et al., 10 Serg. & R., 170-73; Shirts vs. Overjohn, 60 Mo., 305; Woolfolk vs. Bank of America, 10 [Ky.] W. P. D. Bush, 504; Phelan vs. Moss, 67 Pa., [17 P. F. Smith], 59; Stedman et al., vs. Boone, 49 Ind. [15 Am. Law Reg. 91]; Bank of Salina vs. Babcock, 21 Wend., 499; Sandusky vs. Scoville, 24 Wend. 115.

Dryden & Dryden, with A. Reese, for Respondents.

SHERWOOD, Judge, delivered the opinion of the court.

Suit on a negotiable promissory note which the defendant, Armstrong, is charged with having indorsed. The petition contains the usual allegations as to presentment, dishonor and notice.

Though admitting the genuineness of his indorsement the defendant claimed in his answer, which was duly verified that the words “with interest at 10 per cent. after maturity” were, subsequently to his indorsement, and when the instrument was completed, inserted without his knowledge, consent or authority. The answer also contained the statutory general denial, as to dishonor, notice, etc. The reply was similar in its essential features to the one in the Capital bank against the same defendant, decided at the present term, the only difference being that the reply here was more emphatic in its denial of the alteration, alleging “that said new matter was untrue, and a mere pretext on the part of the defendant,” etc.

The note sued on was in this form:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

The evidence was to a certain extent conflicting. The plaintiff had a verdict and judgment. On appeal to general term there was a reversal, on account of which the plaintiff has appealed.

1. In conformity with our previous ruling in the case above referred to, inasmuch as there was no issue made by the pleadings as to subsequent ratification by Armstrong, of the alleged alteration, the third instruction given at plaintiff's instance, must be held erroneous. It manifestly diverted the attention of the jury from that which was to that which was not in issue, thus defeating the very object which the law has in contemplation when requiring pleadings to be filed and a court does not possess the power to change by instructions the issues which the pleadings present. (Moffat vs. Conklin, 35 Mo., 453; Camp vs. Heelan, 43 Mo., 591.)

Our statute (Wagn. Stat., 1040, § 11) defines a trial as “the judicial examination of the issues between the parties.” Now, it is obvious, that a trial must fail in accomplishing its statutory purpose, when diverted to the examination of matters dehors the record and foreign to the issues.

2. The second instruction on behalf of the plaintiff was to the effect that if the interest clause was inserted, either before or after Armstrong's indorsement, and with his consent, this would warrant a finding in favor of the plaintiff. The serious objection to this instruction is, that while it may be correct as far as it goes, it is altogether too narrow in its scope. The other allegations of the petition, put in issue by the answer, as to whether the bank was the holder of the note, as to the presentation of the note for payment, as to its dishonor, as to notice to defendant, etc., etc., are entirely ignored and lost sight of. And yet all these were controverted facts; all necessary to be proven in order to a recovery. And this lack in the instruction was not supplied by any others. The instruction therefore was clearly violative of the principle so often asserted by this court, that an instruction is erroneous which singles out certain facts and directs a verdict, if they are found regardless of other facts at issue. (Hines vs. McKinney, 3 Mo., 382; Sigerson vs. Pomroy, 13 Mo., 620; Clark vs. Hammerle, 27 Mo., 55; Mead vs. Brotherton, 30 Mo., 201.) Instructions are equally faulty whether enlarging or restricting the issues.

3. The first instruction asked and given for the plaintiff, that “if the jury believe from the evidence that any witness has sworn falsely in regard to any material fact in issue, they are at liberty to disregard his entire evidence,” should have been given, if given at all, in a different shape from that in which it was asked. It is not true as a legal proposition, that because a witness has honestly testified to that which is in point of fact untrue, therefore, the jury may reject the whole of his testimony. It is only where a witness has knowingly testified to an untruth, that an instruction of this character should be given. (Paulette vs. Brown, 40 Mo., 52, and cases cited.) The instruction, however, in the case before us even if properly worded, would appear to have had little, if anything, whereon to base it. It is certain that such an instruction should not be given in the ordinary routine of jury trials; and merely because there happens to be a conflict of testimony, such conflict by no means implies dishonesty of motive. The best citizens of the country, when called to the witness stand, frequently differ in their versions of the same facts; but yet this alone should furnish no basis for impugning their purity of purpose, or denouncing them as wholly unworthy of belief.

4. The fourth instruction, asked by defendant, should have been given. The simple fact that the defendant was the indorser of four other promissory notes, containing interest clauses, did not tend in the slightest degree to show that he had authorized the insertion of a clause respecting interest in the note in suit. These notes should not have been admitted, or if improvidently admitted should have been excluded, as asked by the instruction referred to. For it is a rudimentary principle that “the evidence must correspond with the allegations and be confined to the point in issue.” (1 Greenl. Ev., §§ 50, 51, 52, p. 448.) Were the rule otherwise, litigation would be interminable, by reason of the introduction of collateral issues. This evidence was received very doubtingly by the trial court; but we...