Miners' & Merchants' Bank v. Richards

• Decision Date: 18 June 1925
• Docket Number: No. 18943.,18943.
• Citation: 273 S.W. 415
• Court: Missouri Court of Appeals
• Parties: MINERS' & MERCHANTS' BANK OF FLAT RIVER v. RICHARDS et al.

273 S.W. 415

MINERS' & MERCHANTS' BANK OF FLAT RIVER v. RICHARDS et al.

No. 18943.

St. Louis Court of Appeals. Missouri.

June 18, 1925.

Appeal from Circuit Court, Ste. Genevieve County; Peter H. Huck, Judge.

"Not to be officially published."

Action by the Miners' & Merchants' Bank of Flat River against J. N. Richards and others. From the judgment for certain defendants, plaintiff appeals. Reversed and remanded, with directions.

Jerry B. Burks and B. H. Marbury, both of Farmington, for appellant.

J. H. Malugen, of Bonne Terre, Thos. A. Mathews, of Flat River, B. H. Boyer, of Farmington, and T. N. Threlkeld, of Elvin, for respondents.

SUTTON, C.

This action is founded upon a promissory note, as follows:

"$1,500.00 Flat River, Missouri, May 16, 1919.

"Six months after date, we, each as principal, promise to pay to the order of the Miners' & Merchants' Bank of Flat River fifteen hundred dollars for value received, payable at the Miners' & Merchants' Bank of Flat River, Mo., with interest from date at the rate of eight per cent. per annum. The signers and indorsers each waive demand, notice, and protest of this note, and severally agree that the time may be extended without notice. If the interest thereon be not paid annually, or where due, the same shall, when due, or annually, be added to and become a part of the principal, and bear interest at the same rate.

                                            "J. N. Richards."
                

The note is indorsed as follows:

                "H. A. MILLER
                                              "H. Tucker
                                              "H. Gordon
                                              "E. Klein
                                              "Jacob Alper
                                              "H. Goldstein.
                                              "B. S. Kahn.
                                              "L. Sachs."
                

The action is defended on the ground that after the execution and delivery of the note the same was materially altered by striking from the note the signatures of H. A. Miller and H. Goldstein.

The cause was originally brought in the circuit court of St. Francois county. Upon a trial to a jury in that court there was a verdict for plaintiff against all of the defendants except L. Sachs, as to whom the plaintiff voluntarily dismissed its case pending the trial. On motion of the defendants a new trial was granted. Afterwards the venue of the cause was changed to the circuit court of Ste. Genevieve county. In that court the cause was again tried to a jury. Upon that trial the jury by their verdict, concurred in by ten of its members, found the issues in favor of the plaintiff and against the defendant J. N. Richards, and assessed the amount of plaintiff's recovery at $2,077.38, and further found the issues in favor of the defendants H. Tucker, Abe Gordon, E. Klein, Jacob Alper, and R. S. Kahn. Judgment was given accordingly. Plaintiff appeals.

The note in suit was given for a loan of $1,500 made by the plaintiff to defendant J. N. Richards, who received the money at the time the note was delivered to the plaintiff. After the note was signed by the maker and the indorsers, the signatures of H. A. Miller and H. Goldstein were erased from the note, and they were released from liability thereon, at their request. Defendant Richards admitted that at the time of the delivery of the note and the receipt of the money on it he understood that Miller and Goldstein were to be released from liability thereon. On the other hand, there was no proof that either Gordon or Sachs had any knowledge of the alteration of the note. The issue at the trial was whether or not the defendants Tucker, Klein, Alper, and Kahn consented to the alteration. This issue was sharply contested. The evidence for the plaintiff tends to show that these defendants consented to the alteration, whereas the evidence for defendants tends to show the contrary. Upon the cold record the preponderance of the evidence seems to be in favor of the plaintiff. As against defendant Tucker the evidence is especially strong and convincing. It was shown by several witnesses that he knew of the alteration and consented thereto. He himself admitted that he was present at the bank when the note was delivered and the money paid thereon and that he knew then that Miller and Goldstein had asked to be released from the note.

At the close of all the testimony and evidence offered and introduced on the part of both plaintiff and defendants the court gave to the jury the following instruction:

"The court instructs the jury that, under the pleadings and the evidence in this cause, plaintiff is not entitled to recover, and your verdict should be for codefendant A. Gordon."

At the request of the plaintiff the court gave to the jury the following instruction:

"No. 1. The court instructs the jury that, if you shall find from the evidence in this cause that the names of H. A. Miller and H. Goldstein were stricken from the note sued on in this cause without the knowledge, consent, or acquiescence of defendants H. Tucker, E. Klein, Jacob Alper, and R. S. Kahn, or either of them, then said note is not enforceable against such defendant or defendants not so agreeing or consenting thereto. On the other hand, if you find that any of said defendants consented or agreed that said Miller and Goldstein were not to remain on said note, or were to be released from liability thereon, then such defendant or defendants so agreeing or consenting are liable for the full amount found to be due on said note; said sum not to exceed $1,500 and interest due thereon, if any, at 8 per cent, from February 16, 1920."

At the request of the defendants the court gave to the jury the following instructions:

"No. 2. The court further instructs the jury that, if you find and believe from the evidence that after the execution and delivery of the note mentioned in the petition that one or more of the names appearing thereon, as makers or indorsers, had been erased, then the burden is on the plaintiff to prove by a preponderance or greater weight of evidence that such erasure or erasures was done or made with the knowledge and consent of all the persons, whose names remain thereon, except such of them as may have consented thereto, and, unless you find' plaintiff has by such preponderance of evidence shown to your reasonable satisfaction that such knowledge was had and consent given, then plaintiff is not entitled to recover, and your verdict should be for defendants."

"No. 4. The court instructs the jury that, if you shall find from the evidence in the cause that the names of H. A. Miller and H. Goldstein were stricken from the note without the knowledge, consent, or acquiescence of defendants H. Tucker, E. Klein, A. Gordon, Jacob Alper, and R. S....