Kennedy v. Moore
| Decision Date | 21 July 1882 |
| Citation | 17 S.C. 464 |
| Parties | KENNEDY v. MOORE. |
| Court | South Carolina Supreme Court |
1. The addition of words to a sealed note, after its execution converting it from a simple interest into an annual interest obligation, renders the note void as to obligors not assenting to the alteration.
2. Where a note appears upon its face to have been altered in a material part, it is incumbent upon the party producing it to explain the appearance, or show that the alteration was rightly made.
3. Where defendant admits that he signed a note for the amount and of the date mentioned in the complaint, but denies that the note is correctly described, and alleges that alterations have been since made without his knowledge or consent, the plaintiff must prove his note.
4. Nothing contained in proceedings under an adjudication of bankruptcy of the maker of a note is proper evidence in a subsequent action by the payee against a surety.
Before PRESSLEY, J., York, October, 1881.
Action by R. B. Kennedy, administrator, against S. R. Moore executor. The opinion states the case.
Mr W. P. Good , for appellant.
Messrs Wilson & Wilson , contra.
This action, which was commenced on June 12th, 1881, was brought by the plaintiff as administrator de bonis non of N. P. Kennedy, against the defendant as executor of John S. Moore, deceased, on a note of which the following is admitted to be a copy:
$1015-Twelve months after date we or either of us promise to pay to the order of George Steele, Admr. of N. P. Kennedy, dec'd, one thousand and fifteen dollars with interest for value received, witness our hands and seals this the 29th December, 1853. Interest to become principal annually if not paid.
JAS. G. LINDSEY, [SEAL.]
JOHN S. MOORE, [SEAL.]
J. F. LINDSEY, [SEAL.]
J. G. LINDSEY.
In his complaint the plaintiff alleged: " That on the 29th day of December, A.D. 1853, John S. Moore, together with Jas. G. Lindsey, made and delivered their note under seal to George Steele whereby each of them promise to pay to the said George Steele, as administrator of N. P. Kennedy, deceased, the sum of one thousand and fifteen dollars, with interest thereon from the said 29th day of December." The defendant in his answer admitted " that on the 29th of December, 1853, a sealed note signed by Jas. G. Lindsey, John S. Moore, and J. F. Lindsey, was executed to George Steele, as administrator of N. P. Kennedy; but defendant denies that said note is correctly described or set forth in plaintiff's said complaint." For a further defence it was alleged that Jas. G. Lindsey was principal and John S. Moore one of his sureties on the note referred to, and that said note was materially altered, after it was executed by said Moore, by the addition of the words, " Interest to become principal annually if not paid," without the knowledge or assent of said Moore, whereby the said note became void as to him.
When the case came on for trial the court ruled " that as to the proof of the note the affirmative of the issue was on the plaintiff." Thereupon the plaintiff offered the note in evidence, the signature being admitted, and rested. There were several credits indorsed on the note, the last of which was dated April 18th, 1872; but there was no evidence as to who made the payments evidenced by these credits. The defendant then offered testimony tending to show that the note had been altered after it was executed. In reply the plaintiff offered in evidence " the record of the Bankrupt Court in the matter of J. F. Lindsey, Petitioner in Bankruptcy, containing a schedule of all debts due by the petitioner, amongst which was the note in issue; also an affidavit as to the existence and correctness of a debt by sealed note held by the firm of John S. Moore & Sons, made by a member of the firm; also the proof of the debt evidenced by the note in issue by W. E. Erwin, administrator of George Steele, deceased." The court ruled that this record from the Bankrupt Court was not competent evidence...
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