Mulkey v. Long
Decision Date | 12 February 1897 |
Citation | 47 P. 949,5 Idaho 213 |
Parties | MULKEY v. LONG |
Court | Idaho Supreme Court |
EVIDENCE-PROMISSORY NOTE, WHEN TO BE RECEIVED.-Under section 6030 of the Revised Statutes of Idaho, a party offering in evidence a promissory note showing upon its face that it has been altered, is required, before the same can be received, to show that such alteration was made before it came to his hands.
SAME-PROMISSORY NOTE VOID AS TO SURETY, WHEN.-A promissory note altered in a material particular is rendered void as to one who signs it as a surety merely, where such alteration was made without the knowledge or consent of such surety, and a mere verbal promise without consideration will not maintain an action against such surety for the amount of such note.
(Syllabus by the court.)
APPEAL from District Court, Lemhi County.
Reversed and remanded, with directions.
Quarles & Quarles, for Appellant.
The note sued on shows on its face that it had been altered in a material part, and the same was inadmissible under section 6030 of the Revised Statutes of Idaho and its admission in evidence was error. The evidence shows that the appellant Long learned that the name of the payee had been changed, but as there is no evidence showing that he did, after learning of such alteration, promise in writing to pay the same, the evidence showing, or tending to show, such promise, if made was not admissible. The alteration without his knowledge and consent made the note that he had signed absolutely void; it was a forgery; it was not the note he signed; it was not the promise that he made. (Wood v. Steele, 6 Wall. 8.) An oral promise to pay the debt of another is void, and such promise if made by the appellant in this case is void for the further reason that it was without consideration. (Clay v Walton, 9 Cal. 329; Warren v. Fant, 79 Ky. 1 and cases cited; Ellison v. Water Co., 12 Cal. 543; Doyle v. White, 26 Me. 341, 45 Am. Dec. 110; Taylor v. Drake, 4 Strob. 431, 53 Am. Dec. 680.) The surety has a right to stand on the precise terms of his contract. (Agawam Bank v. Sears, 4 Gray (Mass.), 95; Angle v. Northwestern etc. Ins. Co., 92 U.S. 330; Martin v. Thomas, 24 How. 315; Reese v. United States, 9 Wall. 13.)
F. J. Cowen and Reeves & Terrell, for Respondent.
The right of the respondent to recover in this action is based on the ratification, by the appellant, of the note sued on, after he learned of the alterations in the note. Whether there is a ratification is a question for the jury, but the jury find as a matter of fact that appellant did ratify the note after two alterations were made in it. The ratification of the alteration by the parties to the altered instrument will restore it as altered, without a new consideration. (1 Am. & Eng. Ency. of Law, 521, and cases there cited.) Such alteration may be by parol. The appellant contends that he was only a surety for his codefendant Miller, but he signed the note as a principal, and after his ratification of the alterations he cannot be heard to complain that he was only a surety. (Farmers' Nat. Bank v. Stover, 60 Cal. 387; Harlan v. Ely, 55 Cal. 340.)
HUSTON, J. Quarles, J., did not sit in this case. Sullivan, C. J., concurs.
This action is brought upon a promissory note executed by defendant and one Joseph B. Miller, of the following form:
The first specification of error is in permitting the introduction in evidence of the note sued on; it appearing upon the face of the note that the same had been altered in material particulars, to wit, the name of the payee had been changed, and the amount changed. Appellant contends that under the provisions of section 6030 of the Revised Statutes of Idaho said note was not admissible in evidence. In the complaint no reference is made to any alteration in the note. Section 6030 of the Revised Statutes is as follows: ...
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State v. Baird
...645.) Counsel next assigned as error the admission of the bond in evidence, because of its alteration, and cites the case of Mulkey v. Long, 5 Idaho 213, 47 P. 949, in support of the contention. This court in that case "The party presenting an instrument which upon its face shows that it ha......
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...Am. St. Rep. 725, 9 S.E. 637; Jones on Evidence, sec. 507; First Nat. Bank of Lewiston v. Williams, 2 Idaho 670, 23 P. 552; Mulkey v. Long, 5 Idaho 213, 47 P. 949.) surety can certainly make an agreement to release himself from responsibility. (Gilstrap v. Smith, 101 Ga. 120, 65 Am. St. Rep......
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General Motors Acceptance Corporation v. Talbott
... ... showing that it was so altered before it came into ... respondent's hands. (C. S., sec. 7980; Mulkey v ... Long, 5 Idaho 213, 47 P. 949.) ... The ... alteration of the note, by changing its date, was a material ... alteration. (C. S., ... ...
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Holyfield v. Perkins
...cases are frequently cited as holding that a new consideration is necessary: Warren, etc., v. Fant's Trustee, 79 Ky. 1; Mulkey v. Long, 5 Idaho 213, 47 P. 949; v. Hayes, 40 Minn. 531, 42 N.W. 467. In the latter case the alteration was fraudulent and amounted to a forgery by the holder, and ......