McElroy v. Caldwell

• Decision Date: 31 August 1842
• Citation: 7 Mo. 587
• Parties: MCELROY v. CALDWELL.
• Court: Missouri Supreme Court

7 Mo. 587

MCELROY

v.CALDWELL.

Supreme Court of Missouri.

August Term, 1842.

ERROR TO THE MONROE CIRCUIT COURT.

NAPTON, J.

This was an action by petition in debt, brought by McElroy against Caldwell and William Buckner, Jr. Buckner not having been served with process, the suit abated as to him. The foundation of the action was a bond executed by Buckner and Caldwell for $1145 54. Pleas of nil debet, fraud and payment, were put in by defendant, Caldwell, and issues taken to the country. On the trial, the plaintiff gave in evidence the bond, with several credits indorsed thereon. The last credit indorsed was for $707 61 and appeared to have been erased by drawing a pen through it. The indorsement was not in the hand-writing of McElroy. The defendant then proved by Saunton Buckner, that he (witness) wrote the indorsements; that at the time he did so, he was clerk for William Buckner, the partner of Caldwell, and had no recollection of any attempted erasure. The erasure, witness said, was in a different kind of ink from the indorsement, and must therefore have been made subsequently to the indorsement. Witness stated that he would not have indorsed the credit, without the assent of William Buckner and McElroy, but that the transaction was so old, that he could not speak positively. The witness also stated that he had entered a similar credit in the books of Caldwell and Buckner, corresponding in date and sum with the credit indorsed on the bond. There was no other material testimony touching this credit, which was the only matter in controversy. The court instructed the jury, that if they believed from the evidence, that the credit for $707 61 was placed upon said bond by the assent of the plaintiff, and of the obligees in said bond, it was good legal evidence of payment unless the plaintiff showed that it was afterwards erased by the consent of the parties. The jury found a verdict for the defendant, and judgment was given accordingly. To reverse this judgment, the case has been brought here by writ of error.

We are unable to perceive any substantial objections to the instructions of the Circuit Court. Had the indorsement been made without the consent of the plaintiff, it would have been no evidence of the credit, not having been in his handwriting, and he could have erased it at pleasure. But an indorsement of a credit, made by his consent, is as binding as though made in his own handwriting; and the note being presumed by law to be in his possession, it...