Olive Street Bank v. Phillips

• Decision Date: 31 December 1913
• Parties: OLIVE STREET BANK OF ST. LOUIS v. PHILLIPS.
• Court: Missouri Court of Appeals

162 S.W. 721

179 Mo. App. 488

OLIVE STREET BANK OF ST. LOUIS v. PHILLIPS.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

1. BILLS AND NOTES (§ 489)—ACTION—PROOF AND VARIANCE—"UNPROVED IN ITS ENTIRE SCOPE AND MEANING."

Under a petition alleging a note bearing interest at 8 per cent. per annum until paid, from its date, proof of a note providing for interest at 8 per cent. from date until maturity, and at 8 per cent. from maturity until paid, payable monthly, and that, if interest was not paid when due, it should become principal and bear the same interest, is not a case where "the allegation is unproved in its entire scope and meaning" within Rev. St. 1909, § 2021, and was not so utterly inconsistent with the note alleged as to disprove the cause of action alleged, or amount to a total failure of proof.

2. APPEAL AND ERROR (§ 197)—OBJECTION— VARIANCE.

The party complaining of a variance must not only interpose timely and specific objection to the introduction of the evidence offered, but must file an affidavit of surprise, as required by Rev. St. 1909, § 1846, and if he fails to do so it is too late to complain in the appellate court.

3. ALTERATION OF INSTRUMENTS (§ 30)—EVIDENCE —QUESTION FOR JURY.

In an action on a note, evidence for plaintiff to overcome defendant's proof as to alteration held to be substantial and sufficient to make the alleged alteration of the note after delivery a question for the lower court sitting as a jury.

4. APPEAL AND ERROR (§ 846)—PRESUMPTIONS —PROPER APPLICATION OF LAW.

In a case tried before the court, where no declarations of law were asked by either party, and none were given, it must be presumed that the court made a proper application of the law to the facts.

5. APPEAL AND ERROR (§ 1010)—REVIEW— FINDINGS.

A finding of the trial court without a jury, supported by substantial evidence, is conclusive.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by the Olive Street Bank of St. Louis against G. M. Phillips. Judgment for plaintiff, and defendant appeals. Affirmed.

Fauntleroy, Cullen & Hay and Barclay & Orthwein, all of St. Louis, for appellant. Wilfley, Wilfley, McIntyre & Nardin, of St. Louis, for respondent.

ALLEN, J.

This is a suit upon a promissory note given plaintiff bank by defendant for money loaned him and placed to his credit at the bank. The instrument as offered in evidence was in the following form:

"$1,000.00. St. Louis, Mo., Feb. 14th, 1908.

"Six months monthly after date I promise to pay to the order of Olive Street Bank.... ........at the office of the

"Olive Street Bank of St. Louis,

One Thousand ...............xx Dollars, For value received, with interest at the rate of 8 per cent. per annum from date until maturity, and at eight per cent. from maturity until paid; payable monthly annually. If the interest is not paid when due, it shall become as principal and bear the same rate

                of interest.        G. M. Phillips
                                       "Commercial Bldg."
                

The petition charged "that defendant, on the 14th day of February, 1908, by his negotiable promissory note of that date, by him duly executed and delivered, promised for value received to pay to plaintiff, six months from said 14th day of February, 1908, aforesaid, the sum of one thousand ($1,000.00) dollars, with interest at the rate of 8 per cent. per annum until paid, from and after the date thereof." The answer, which it is said was verified by affidavit, denied the execution of the note "described in plaintiff's petition, or any promissory note, in the terms, or to the effect, as is described in the petition of said plaintiff, in this action"; and further contained a general denial. A reply was filed averring that whatever changes, if any, were made in the note sued on were made with the knowledge and consent of defendant; and that, if any alterations were made therein after the execution thereof by defendant, the same were fully ratified and approved by him. The defense interposed pertains to alterations claimed to have been made in the note, after delivery, and without the knowledge and consent of the defendant; it being contended that such alterations were material and vitiated the instrument. It is asserted by defendant that the words "monthly" and "eight," which we have underscored in the note as set out above, were inserted in such places therein, and the word "annually" stricken out in the interest clause thereof, after delivery, and without defendant's knowledge and consent.

I. The first point raised, however, and for which it is...