Medlin v. Platte Cnty.

• Decision Date: 31 July 1843
• Citation: 8 Mo. 235
• Parties: MEDLIN v. PLATTE COUNTY.
• Court: Missouri Supreme Court

8 Mo. 235

MEDLIN

v.PLATTE COUNTY.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM PLATTE CIRCUIT COURT.

JONES and LEONARD, for Appellant. 1. That the erasure of the name of Johnson from the note, after its execution and delivery to plaintiff, without the knowledge and consent of Medlin, renders the note void, and discharges him from the payment thereof, even though the erasure was made by a stranger, or any other person whomsoever, except it was done by Medlin, and that no action can be brought upon it even in the hands of an innocent holder for valuable consideration. 1 Peters' U. S. C. C. R. 560; 6 Mass R. 33; 4 Am. C. Law, 278; 5 Monroe's R. 32; 1 Wheaton's Selwyn, 547, note 1, 549, top-paging; 4 Durn. and East's R. 320; Trin. term, 31 George III., 3 Esp. 57, 246; 4 East, 203; 15 East. 29; 1 Com. 72; 3 Yates, 391; 10 Serg. and Rawle, 428; 6 Serg. and Rawle, 361; 1 Wheaton's Selwyn, 316, 317; 19 Johns. R. 424, toppaging; Chitty on Bills, 203, b, note U., 9th Am., from 8th London ed.; 4 Term. R. 320; 5 Term. R. 367; 2 H. Blacks. 141; 1 Austr. 225; S. C. Com. Dig. Fait, F. 1; 6 East, 309; 1 Mo. R. 312. 2. That the note was improperly admitted in evidence on the declaration. A variance, however small, in setting out the names, &c., in a bill or note, is fatal, and where the contract stated on the record is, by legal intendment, different from that proved in evidence, the variance will be fatal. 1 Chitty's Pl. 307, 308, 4 Am. from 3rd London ed. If the plaintiff is entitled to recover at all, she can only recover on the common counts, and there being none in the declaration, the note and other evidence ought to have been excluded. Chitty on Bills, 205, 206, note E., 9th Am. from 8th London ed. 3. That the evidence offered by appellant, and rejected by the court, ought to have been admitted. The County Court is, by law (Rev. St. of Mo. 157, 159, part of 15th section), made the general agent of the plaintiff, with full power to control her financial matters. This evidence ought to have been admitted to show the jury by whom and in what way the erasure was made. See authorities cited as to first point. 4. That the instructions given by the court to the jury, on the part of the plaintiff, ought not to have been given. To show this, see authorities cited as to first point. The treasurer of plaintiff is, by law (Rev. St. of Mo., 150, art. 1, § 3), made the general agent of the plaintiff, and authorized and required to receive the money due on the note. Qui facit per elium facit per se. 5. That the instructions asked by appellant, and refused by the court, ought to have been given. To show this, see N. H. R. 145; 11 Mass. R. 309; 4 Am. C. Law, 280, and authorities cited as to first point. 6. That the verdict is against the law and the evidence. See authorities cited as to first, second, and fifth points. 7. That the fourth count of plaintiff's declaration is insufficient in law to support the verdict of the jury. The fourth count shows no liability on the part of defendant to pay the amount of said note, and for this reason the count is defective, and the note ought not to have been admitted in evidence on it. Muldrow v. Tappan et al., 6 Mo. R. 276; 1 Chitty, 329. 8. That all the evidence on the part of plaintiff is illegal, and ought to have been rejected. See authorities cited as to second point.

TOMPKINS, J.

The State of Missouri sued Hall Medlin and others, in debt. The action was brought on an instrument of writing by which Medlin and two others promised to pay to the State $500. There were several counts in the declaration, in some of which the plaintiff declared on the instrument of writing sued on, as a sealed instrument, and in others as an unsealed writing. The two other co-defendants being otherwise disposed of, a verdict and judgment went against Hall Medlin in said count, and to reverse it he appealed to this court.

The bill of exceptions shows, that the instrument of writing sued on was given to the county of Platte for so much money borrowed from it by the defendants, of whom John Allen was principal, and Stephen Johnson and Hall Medlin, the present defendant, were securities, and that Johnson's name was erased.

James H. Johnson, the first witness, introduced by the plaintiff below, states, that by request he wrote the instrument of writing sued on, and saw said Allen and Johnson sign it, and that immediately after they went to the courthouse, the court being then in session; that he was treasurer of the county; that a day or two afterwards the note was handed to him by the deputy-clerk, and that about a week after he gave the clerk of the county court a receipt for said note or writing. He further states, that his recollection is not distinct, but he thinks the name of Johnson was erased from said note at the time he received it. The deputy clerk, who handed the writing to the treasurer, thought that Johnson's name was not erased when he passed said writing to James H. Johnson, the treasurer; and the treasurer, succeeding to Johnson, stated that he never heard of the erasure of Johnson's name till he parted with the possession, and that he did not believe it was erased beofre he parted with it. No order was found on the records of the county court to authorize either the loan to Allen, on the security of Johnson and Medlin, or the erasure of the name of Stephen Johnson.

John B. Collier, a witness of the defendant, stated, that when said instrument of writing was accepted by the county court of Platte county, he was a member of the court; that when the writing was handed to the court the names of the three makers were signed and affixed thereto; that he did not recollect how long, after its reception by the court, it was until the name of Johnson was erased: that no order was made accepting said Medlin and Johnson as securities for Allen, but they were received verbally by the court.

The defendant then offered to prove, by this witness, that the said county court while in session, and in open court, agreed verbally that the name of said Johnson might be erased from said note, and that it was erased accordingly by the authority of said court, withont the knowledge or consent of Medlin. This testimony was rejected by the Circuit Court, and the decision of the court was excepted to.

The evidence being closed, the Circuit Court, on the motion of the plaintiff, mstructed the jury, that the erasure of the name of Johnson could not release Medlin unless it were made by the order of the county court, while in session. This is the substantial part of four instructions demanded by the plaintiff.

The defendant asked the four following instructions: 1. That if the name of the said Johnson has been erased from said writing since the execution and delivery thereof, it is incumbent on the plaintiff to prove that it was done by accident or mistake, or by the consent of Medlin, and that in the absence of such proof they must find for Medlin. 2. That if the county court of Platte county, while in session, gave leave to said Johnson, or to any other person to erase the name of said Johnson from said writing, and that it was in pursuance of such leave erased therefrom, and...