McCormack Harvesting Machine Company v. Blair
| Decision Date | 04 January 1910 |
| Citation | 124 S.W. 49,146 Mo.App. 374 |
| Parties | McCORMACK HARVESTING MACHINE COMPANY, Respondent, v. JOSEPH H. BLAIR, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pike Circuit Court.--Hon. David H. Eby, Judge.
Judgment reversed and cause remanded.
J. H Blair for appellant.
(1) The court erred in admitting evidence in behalf of the plaintiff the notes sued on, as their alteration was not explained. Kelley v. Thuey, 143 Mo. 422; Land Co. v. Tie Co., 89 Mo.App. 556. (2) The court erred in overruling defendant's objection to the witness, Gordon, testifying as to exhibits A and B that was properly testimony in chief. (3) The court erred in refusing to give the instruction asked by defendant. (4) The court erred in giving the instruction asked by plaintiff, peremptorily instructing the jury to find for the plaintiff on the third count of the petition. Mosely v. Commission Co., 91 Mo.App. 500. (a) It was for the jury to say whether the notes, as they were executed were given and accepted in payment of the account or not. There was testimony that J. E. Gibbs, plaintiff's local agent, at the time the discussion of their execution was being had, offered to take the notes and pay the plaintiff cash for them. Steamboat v. Hammond, 9 Mo. 58. (b) Plaintiff sued on both the notes, and account for the purchase price of the binder. He could not sue on the account until he returned or offered to return the notes to defendant for cancellation. This he did not do. Holland v. Rongey, 168 Mo. 16; Steamboat v. Lumm, 9 Mo. 63; Flynt v. Railroad, 38 Mo.App. 90; Schepflin v. Dessar, 29 Mo.App. 569; Bertiaux v. Dillon, 20 Mo.App. 603. The notes sued on were altered with the intention of defrauding the defendant. Every rational man is presumed to intend the natural or probable consequence of his acts. Hall v. Goodnight, 138 Mo. 576. In this State any unauthorized alteration of a note is material, hence in the case at bar both a material and a fraudulent alteration is charged, either of which if true, not only avoided the notes, but worked a forfeiture of the debt for which they were executed, and no recovery can be had in any form of action. The law will not allow any one to take the chances of gain by fraudulently altering a note without the risk of loss in the event of detection. 2 Am. and Eng. Ency. Law (2 Ed.), pp. 187, 200, 202, and notes, citing with other authorities, Whitmer v. Frye, 10 Mo. 349; Tiedeman on Bills and Notes, sec. 150; Dan. Neg. Inst., sec. 1410a; Lawson on Cont., sec. 433; Newell v. Mayberry, 3 Leigh 250; Martindale v. Follet, 1 N.H. 95; Smith v. Mace, 44 N.H. 553; Plow Co. v. Campbell, 35 Neb. 173; Bigelow v. Stilphen, 35 Vt. 521; Waring v. Smith, 2 Barb., ch. 119; Wardner v. Willyard, 46 Minn. 531. (4) Under the evidence, the issue as to the alteration of the notes should have been submitted to the jury. Sweitzer v. Banking Co., 76 Mo.App. 1; Building Assn. v. Fitzmaurice, 7 Mo.App. 283; Paramore v. Lindsey, 63 Mo. 63; State v. Goddard, 40 Mo. 464; McCormick v. Fitzmorris, 39 Mo. 24. (5) The court erred in entering a judgment for the sum of $ 71.71 1-2, the amount awarded by the jury, after the plaintiff had remitted 1 1-2 cents of the amount found by the jury.
R. L. Motley for respondent.
Unless it was expressly agreed between the parties that the giving of the notes was to be taken as a payment and satisfaction of the account or original cause of action, then said notes did not operate as an extinguishment or liquidation of said cause of action. Bertiaux v. Dillon, 20 Mo.App. 603; Holland v. Rongey, 168 Mo. 16; McMurray v. Taylor, 30 Mo. 263; Howard v. Jones, 33 Mo. 583; Powell v. Blow, 34 Mo. 485; Block v. Dorman, 51 Mo. 31; Leabo v. Good, 67 Mo. 126; Commisky v. McPike, 20 Mo.App. 82. Plaintiff properly joined in its petition the counts on the two notes and on the account for the balance due on the purchase price of the machine. Howard v. Shirley & Hawkins, 75 Mo.App. 150.
In this case the petition contains three counts. The first two declare upon promissory notes and the third declares in assumpsit for an amount alleged to be due for a harvesting machine sold to the defendant. The indebtedness sued for in the third count is for the same consideration as that represented by the two promissory notes declared upon in the first and second counts. The defendant admitted having purchased the harvesting machine mentioned in the third count and the original indebtedness therefor, but pleaded that he had executed the promissory notes declared upon in the first and second counts for that indebtedness. He pleaded, too, that after the execution of the notes, the defendant had materially altered the same and that such alteration operated to discharge him from all liability. Upon the conclusion of the evidence, at the request of plaintiff, the court peremptorily directed the jury to return a verdict for the defendant on the first and second counts of the petition; that is, on the notes, and likewise, peremptorily directed a verdict for the plaintiff on the third count; that is, on the count for goods sold and delivered. The jury returned a verdict in accordance with the directions of the court and the defendant prosecutes the appeal.
It appears the defendant purchased a harvesting machine from the plaintiff in the summer of 1902 at the agreed price of one hundred and five dollars. A few months thereafter he executed to the plaintiff his three promissory notes for thirty-five dollars each to cover the indebtedness contracted in purchasing the machine. The first note fell due September 1, 1903; the second note, September 1, 1904, and the third note, September 1, 1905. Although all the notes were actually executed in October, 1902, they were dated June 23rd of that year at Bowling Green, Missouri. The first note was paid when due and the other two are involved here. The testimony on the part of the defendant tends to prove that none of the notes mentioned were to draw interest prior to maturity; that is to say, each and all of them were to draw interest at six per cent per annum from and after the date of maturity and that plaintiff's agent, without defendant's knowledge or consent, changed or altered the same in this respect, after their execution and delivery to defendant, by the insertion of certain words so as to make them draw interest at six per cent from and after date instead of from maturity. Upon paying the first note, the defendant discovered the alteration and refused to pay the others. If the notes were altered at all, the alteration was made by the plaintiff's agent who had charge of its notes and collections, for there is evidence that the words inserted are in his handwriting. The evidence on the part of plaintiff tended to prove the writing therein was done prior to execution and that there was no alteration.
It is argued that as the court directed a verdict for the defendant on the first two counts of the petition--that is, on the notes--there can be no recovery on the third count for the reason the indebtedness therein sued for was extinguished by the notes. The law is well settled to the effect that the giving of a promissory note for a pre-existing debt does not operate to extinguish the indebtedness for which the note is given without a special or express contract imparting to the transaction that effect. It is true the giving of the note in such circumstances suspends the right to sue upon the indebtedness during the time the note has to run and it is treated as a payment thereof to the extent that the party to whom the note has been given cannot recover upon the original cause of action without producing the note on the trial for cancellation or properly accounting for its non-production. But in the absence of an express agreement to that effect, the note does not operate to extinguish the indebtedness. [Howard v. Jones, 33 Mo. 583; Howard & Shirley v. Hawkins, 75 Mo.App. 150; Steamboat Charlotte v. Lumm, 9 Mo. 59; Bertiaux v. Dillon, 20 Mo.App. 603; Schepflin v. Dessar, 20 Mo.App. 569; McMurray v. Taylor, 30 Mo. 263; Holland v. Rongey, 168 Mo. 16, 67 S.W. 568; O'Bryan v. Jones, 38 Mo.App. 90.]
When it is sought to defeat a recovery in assumpsit for the original consideration by showing the indebtedness was discharged or extinguished through the giving of the note, the burden is, of course, on the defendant to show an express agreement to that effect. [McMurray v. Taylor, 30 Mo. 263.]
There is not a word of testimony in the present record tending to show any such special agreement between the parties. It appears only that defendant purchased the machine from the plaintiff at the agreed price of one hundred and five dollars in the early summer of 1902 and executed his three several notes therefor for thirty-five dollars each, later in the fall. The notes were ante-dated to June 23, 1902, and fell due at the various dates hereinbefore stated. The defendant paid the first when due and says upon discovering that the plaintiff had altered the same, declined to pay the others for that reason. In the absence of an express agreement to the effect that the notes were given in liquidation of, or to extinguish, the original indebtedness, the suit may be maintained in assumpsit on the third count for the price of the machinery on the original consideration unless the alteration in the notes was fraudulent, in which event, we believe, the plaintiff, by his own act, forfeited the right of a recovery on the original consideration.
But it is said the law requires the plaintiff to deliver the notes as for cancellation before it may sue in assumpsit on the original consideration, and, therefore, no recovery should be allowed on the third count. The argument is that by suing upon the...
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