Napper v. Blank

• Decision Date: 31 October 1873
• Citation: 54 Mo. 131
• Parties: PATRICK NAPPER, Plaintiff in Error, v. WILLIAM BLANK, Defendant in Error.
• Court: Missouri Supreme Court

54 Mo. 131

PATRICK NAPPER, Plaintiff in Error,

v.WILLIAM BLANK, Defendant in Error.

Supreme Court of Missouri.

October Term, 1873.

John L. Thomas & Bro., for Plaintiff in Error.

Thos. C. Fletcher and Jos. J. Williams, for Defendant in Error.

The briefs of the counsel for both parties are necessarily omitted, because the points urged therein are not discussed in the opinion of the court.

ADAMS, Judge, delivered the opinion of the court.

This was an action by the plaintiff, as holder, against the defendant, as indorser, of a negotiable promissory note.

The note, as set forth in the petition, bears date as of the 28th of June, 1870, and was made payable to the order of the defendant, or bearer, two years after the date thereof, for four hundred and sixty dollars. The maker of the note was Wm. Rouff.

The petition alleges, that the defendant, before maturity of the note, indorsed and transferred it to one Frederick Butz; that when the note become due and payable, on the first day of July, 1872, being the third day of grace, payment was duly demanded, and the note duly protested for non-payment, and due notice of such demand and protest given to all parties; that after this the note was transferred to plaintiff.

The defendant by answer, denied that he indorsed the note sued on; and he further sets up as a defense, that the note, as originally made and when indorsed by him, was dated the 26th of June, 1870, and not the 28th of June, as stated in the petition, and that the date of the note had been altered without his knowledge or consent, and that being so altered and changed it is not the note he indorsed, and is a forgery, and he is not liable thereon as indorser.

The answer also denies, that the note as indorsed by him was duly presented for payment or protested, and denies notice of a proper demand and protest.

The foregoing is about the substance of the two defenses set up in defendant's answer. The plaintiff put in a replication denying all the material allegations of the answer.

The case was submitted to a jury, and upon the trial the plaintiff was permitted to read the note in evidence, and also the notary's demand and protest, and certificate that due notice thereof had been mailed to the defendant.

The certificate of the notary proved, that the demand and protest, &c., were made on the 1st day of July, 1872, and there was no evidence offered or given to the contrary.

On the issue as to the alteration of the date of the note from the 26th to the 28th of June, 1870, both parties gave evidence to establish their respective positions.

At the close of the evidence the plaintiff asked the following instruction, which was refused by the court, and he excepted: “The court instructs the jury, that no alteration of a note cannot affect the holder, unless it was made by his direction, knowledge or consent, and, before the jury can find for the defendant on the ground of the alteration of the date of the note, they must first find, that such alteration was made with the knowledge, consent or direction of F. Butz, the former holder, or of the plaintiff.”

The court then of its own motion gave the following instruction,...