Mitchell v. Reed's Ex'r

• Decision Date: 21 January 1908
• Citation: 106 S.W. 833
• Parties: MITCHELL v. REED'S EX'R ET AL.
• Court: Kentucky Court of Appeals

106 S.W. 833

MITCHELL v. REED'S EX'R ET AL.

Court of Appeals of Kentucky.

January 21, 1908

Appeal from Circuit Court, Fulton County.

"Not to be officially reported."

Action by Ann E. Mitchell against J. M. Reed's executor and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Robert H. Winn, for appellant.

Robbins & Thomas and John W. Cutrar, for appellees.

CARROLL J.

In April, 1891, the appellees G. G. Wade, E. B. Wade, and J. M Reed, now deceased, executed and delivered the following paper at Friars Point, in the state of Mississippi: "On or before April 4, 1892, we promise to pay R. A. Mitchell assignee, or order, at the Clarksdale Bank & Trust Company at Clarksdale, Miss., fifteen hundred dollars, with eight per cent. interest per annum from date until paid, for value received." Before its maturity this note was discounted and assigned to the New Farmers' Bank of Mt. Sterling Ky. with an indorsement on the part of the payee, R. A. Mitchell, assignee, and William and R. A. Mitchell, to pay it at maturity. Some time afterward the New Farmers' Bank of Mt. Sterling made an assignment to the Columbia Finance & Trust Company, who brought suit on this note against the makers in the Fulton circuit court. In the settlement of the assigned estate this note, in connection with other assets, was sold, when appellant, Ann E. Mitchell, became the owner of it, and the suit has since been prosecuted in her name.

Several defenses were interposed by appellees to the note, but we only deem it necessary to notice with particularity the one that sets up that a material alteration was made in the note by the payee, Mitchell, after its execution and delivery to him. As originally written it was made payable at the "Continental National Bank, of Memphis, Tenn." A line was drawn through these words, and in place thereof there was written in the note "Clarksdale Bank & Trust Company, at Clarksdale, Miss." Appellees' contention is that when they signed and delivered the note to Mitchell it was payable at the Continental National Bank, of Memphis, Tenn., and that without their knowledge or consent Mitchell erased the words "Continental National Bank, of Memphis, Tenn.," and inserted "Clarksdale Bank & Trust Company, at Clarksdale, Miss." The second defense is that the note was executed as a part of a written contract entered into at the time the note was executed, which contract contained mutual obligations to be performed by R. A. Mitchell and the Wades and J. M. Reed, the makers of the note. The material parts of this contract are as follows: The Wades and Reed sold, conveyed, and delivered to Mitchell a certain described tract of land in Tunica county, Miss., together with all the timber thereon, and also a large number of saw logs and a quantity of lumber, together with sawmills and fixtures, and also executed the note sued on. In consideration of these conveyances and transfers, and the execution of this note, Mitchell agreed to surrender and deliver to the Wades all the notes sued on in two attachment suits in Mississippi, and all other notes or evidences of indebtedness held by R. A. Mitchell, assignee, executed or due by the Wade Lumber Company, the Wade Bros., or any one or more members of either or both of said firms. He further agreed to pay off and satisfy certain indebtedness due by the Wades and Reed to the Continental National Bank, of Memphis, Tenn., and to pay J. M. Reed $2,000, for which a note was executed, and to dismiss all proceedings by attachment in the circuit court in Fulton county, Ky. against the Wade Lumber Company and the members of the firm.

It seems that previous to this compromise settlement there were pending a number of suits by Mitchell, as assignee, against the Wades, and that the Wades and Reed were asserting claims against Mitchell, as assignee, and that after numerous efforts to adjust the differences between them the contract referred to was entered into. A careful consideration of the record convinces us that Mitchell did not perform his part of this contract, and that there was in this particular a failure of consideration to support the note sued on. But as the first-mentioned defense presents a complete bar to a recovery of the note, and is easier of statement, we have concluded to rest our decision affirming the case upon that.

The evidence in support of the contention of appellees that the alteration was made without their knowledge or consent may be summed up briefly as follows: The note as it appears in the record shows on its face that it was originally payable at the "Continental National Bank, of Memphis, Tenn." that a line as with a pen was drawn through these words, and over them written the words "Clarksdale Bank & Trust Company, at Clarksdale, Miss." The written contract of settlement between the parties, executed in connection with the note and as a part of the same transaction, recites that "E. B., G. G., and W. W. Wade hereby agree as part consideration of this instrument to pay R. A. Mitchell, as such assignee, fifteen hundred dollars on or before April 4, 1892, at the Continental National Bank, of Memphis, Tenn., for which a promissory note of even date herewith is to be executed by E. B., G. G., and W. W. Wade with J. M. Reed as surety." E. B. Wade testified, in behalf of appellees, that the alteration in the note was made without his knowledge or consent, and that he knew nothing about the change until after suit had been brought on the note; that, when signed and delivered by him, it was made payable at the Continental National Bank, of Memphis, Tenn.; that he did not know when the alteration in the place of payment was made, but it was after the note had been delivered to the payee, R. A. Mitchell. G. G. Wade states that when the note was signed by him it was payable...