Lubbering v. Kohlbrecher
| Decision Date | 31 March 1856 |
| Citation | 22 Mo. 596 |
| Parties | LUBBERING, Respondent, v. KOHLBRECHER, et al., Appellants. |
| Court | Missouri Supreme Court |
1. Where a material alteration is made in a promissory note by one unauthorized by, and without the knowledge or consent of, the owner of such note, the note is not thereby avoided as against such owner.
Appeal from St. Louis Law Commissioner's Court.
The facts are sufficiently stated in the opinion of the court.
Cline & Jamison, for appellants.
T. Spies, for respondent.
The plaintiff brought suit before a justice of the peace on a promissory note for $100. The defense was that it had been fraudulently altered after its execution, and without the consent of the makers. The plaintiff had judgment before the justice of the peace; the case was then taken by appeal to the law commissioner's court.
When the trial came off in the law commissioner's court, the defendant objected to the reading of the note in evidence, because it bore marks or evidence on its face of having been altered and erased after its execution; that the plaintiff must first explain the alterations and erasures before she could read the note in evidence. The objection was overruled, and defendants excepted. The plaintiff then read the note in evidence and closed her case.
The defendants then proved that the words “ with interest from date” were added to the note after its execution. The defendants then asked several instructions, which were refused, and the law commissioner, on motion of the plaintiff, declared the law as follows: 1st, the plaintiff is not affected by any alteration or erasures or spoliation made on the note sued on unless the same was done by her, or by her knowledge or consent; 2d, an agent has no implied authority to do an unlawful act, so as to bind his principals, unless such act is done by the knowledge and consent of the principal; 3d, if the court, sitting as a jury, shall believe from the evidence that what was written upon and erased on the note in question had no tendency to change the language and meaning thereof, then they must find for the plaintiff.
It is not necessary to notice the instructions prayed for by defendants and refused, as the two first given for the plaintiff contained the proper rule on this subject, and the case was tried upon that rule. The 3d instruction given, although not correct, had nothing to do with the case. The alteration here was material, and if made by the party or with her consent, avoided the note, and this was the principle on which the case was decided. The 3d instruction then could do no harm, as we see the case was...
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Lampe v. Franklin American Trust Co.
...of an instrument would defeat a recovery thereon, although an immaterial alteration that was not fraudulent might not do so. Lubbering v. Kohlbrecher, 22 Mo. 596; Murphy Holliway, 16 S.W.2d 113. The authorities drew a clear and sharp distinction between a fraudulent alteration and one that ......
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Kelly v. Thuey
...the present, the burden is on the plaintiffs to satisfactorily explain the alteration. Matthews v. Coalter, 9 Mo. 696, 702; Lubbering v. Kohlbrecher, 22 Mo. 596; McCormick v. Fitzmorris, 39 Mo. 24, 34; v. Lindsey, 63 Mo. 63, 66, 67; Holton v. Kemp, 81 Mo. 661; Stillwell v. Patton, 108 Mo. 3......
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Murphy v. Holliway
...is applied where the spoliation is the act of an agent, because the agent has no authority to alter the terms of the writing. [Lubbering v. Kohlbrecher, 22 Mo. 596; County Bank v. Goode, 44 Mo.App. 129, 135; Medlin v. Platte County, 8 Mo. 235; Hays v. Odom, 79 Mo.App. 425.] If a principal b......
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Bailey v. Bank
...In the following cases the materiality appears to have been regarded as the controlling question: Whitmer v. Frye, 10 Mo. 348; Lubbering v. Kohlbrecher, 22 Mo. 596; v. Michael, 33 Mo. 398; Owings v. Arnot, 33 Mo. 406; Bank v. Bangs, 42 Mo. 450; Britton v. Dierker, 46 Mo. 591; Bank v. Nickel......