McCormick Harvesting Machine Company v. Blair

• Citation: 164 S.W. 656,181 Mo.App. 593
• Parties: McCORMICK HARVESTING MACHINE COMPANY, Respondent, v. JOSEPH H. BLAIR, Appellant
• Decision Date: 03 March 1914
• Court: Court of Appeal of Missouri (US)

164 S.W. 656

181 Mo.App. 593

McCORMICK HARVESTING MACHINE COMPANY, Respondent, v. JOSEPH H. BLAIR, Appellant

Court of Appeals of Missouri, St. Louis

March 3, 1914

Appeal from Pike Circuit Court.--Hon. David H. Eby, Judge.

AFFIRMED.

Judgment affirmed.

J. H Blair, appellant, pro se.

R. L Motley for respondent.

NORTONI J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

This is a suit for the balance due on the purchase price of a harvesting machine. Plaintiff recovered and defendant prosecutes the appeal. The purchase of the machine is admitted and so, too, is the indebtedness sued for, but defendant insists he may not be required to respond for the balance due on the purchase price because plaintiff fraudulently altered without his consent, certain notes given therefor.

It appears defendant purchased the harvesting machine from plaintiff in the summer of 1902 at the agreed price of $ 105. A few months thereafter he executed to plaintiff his three promissory notes for $ 35 each to cover the indebtedness contracted in purchasing the machine. By their terms, the first note fell due September 1, 1903, the second note, September 1, 1904, and the third note, September 1, 1905. Although the notes were actually executed in October, 1902, they were antedated as of June 23 of that year, at Bowling Green, Missouri. The first note was paid when due and the other two were sued upon in separate counts of the petition before us, which contains a third count as well upon the original consideration--that is, for the balance due thereon. Defendant denied liability on the notes, for the reason, as he asserted, that they had been materially altered by plaintiff without his knowledge or consent, after their execution. The alteration consisted, it is said, in changing the phraseology of the notes so as to make them draw interest from and after September 1, 1903, whereas they should draw interest only from and after maturity--that is, the second note from September 1, 1904, and the third note from September 1, 1905. A former trial of the case proceeded on the three counts of the petition, and at the conclusion of all of the evidence, plaintiff requested the court to direct a verdict for defendant on the notes and for it on the third count of the petition--that is, on the count in assumpsit for the balance due on the original consideration. The court so peremptorily instructed the jury and a verdict was accordingly awarded for plaintiff thereon.

This instruction was requested and given at the former trial on the theory that it was essential for plaintiff to surrender and cancel the notes in court before it was entitled to recover on the third count on the original consideration. Such was a proper course of procedure under the authorities in this State, as will appear by reference to the opinion in the former appeal. [See McCormick Mach. Co. v. Blair, 146 Mo.App. 374, 124 S.W. 49.] Upon reviewing the proceedings had on the former trial, this court reversed the judgment and remanded the case for further proceedings on the third count of the petition alone--that is to say, on the count declaring upon the original indebtedness for which the notes so canceled were given. On the former appeal, we declared the rule of decision in this State to be, with respect to notes executed before the passage of the negotiable instrument statutes, that, although any alteration in a promissory note made by the holder thereof, without the knowledge or consent of the maker, would operate to defeat the holder's right to recover on the notes, the right of recovery on the original consideration is precluded only upon its appearing that the alteration was both material and fraudulent. It is said the right to recover on the original consideration in such cases is dependent upon whether the alteration of the note was innocently made without any intent to defraud, or was made with a fraudulent purpose. Where the written instrument is altered without any fraudulent intent, although the writing is avoided, a promisee may recover upon the original consideration. [See Harvesting Mach. Co. v. Blair, 146 Mo.App. 374, 124 S.W. 49.] The case was remanded to be tried on the third count of the petition declaring upon the original consideration for the balance due on the harvesting machine for an ascertainment as to whether or not the notes, if altered, were designedly changed with a fraudulent purpose. It appears from the record of the trial now under review that this question was submitted by instructions given at the instance of both parties, and the jury found the fact to be that, though the notes were altered, no fraudulent intent obtained. It is unnecessary to review the instructions touching this matter, for they are full and clear concerning it.

Defendant's principal point on the present appeal pertains to a defense of res adjudicata set forth in both his first and second amended answers but which was stricken out of each by the court on plaintiff's motion. In view of the doctrine above adverted to, to the effect that one may sue for the original consideration by surrendering the notes at the trial for cancellation, and in view of the fact that plaintiff at the former trial requested the court to instruct the jury to find against it on the notes but for it on the third count of the petition, we said on the former appeal the notes had therefore passed into the realm of res adjudicata. Such was merely remarked with respect to the notes themselves, for, obviously, no suit could be maintained thereon after they were thus voluntarily canceled by surrender in court, under the rule of decision which declares such surrender, under such circumstances, to be a cancellation of the notes, though the debt continues to exist. It is on what was said concerning this matter the question of res adjudicata is sought to be invoked in defendant's first and second amended answers which defense the court struck out on motion. From a reading of the opinion on the prior appeal (see Harvesting Mach. Co. v Blair, 146 Mo.App. 374, 124 S.W. 49), it appears clear that, though the notes themselves were said to have passed into the realm of res adjudicata, the original consideration for such notes had not so passed, for it was expressly reserved from the operation of the rule and, indeed, the case was remanded to be tried with respect to that subject-matter. The...