Palmer v. Poor
| Decision Date | 23 November 1889 |
| Docket Number | 13,968 |
| Citation | 22 N.E. 984,121 Ind. 135 |
| Parties | Palmer v. Poor |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
Judgment affirmed.
W. S Diven, for appellant.
W. A Kittinger and L. M. Schwinn, for appellee.
The appellant's complaint is founded on a promissory note which it is alleged was executed by the appellee to A. J. Selby, by Selby endorsed to Theodore Fields, and by the latter to the appellant before maturity and for value. The note is negotiable by the law merchant.
The third paragraph of the appellee's answer admits that he signed the note, but avers that after it was signed it was altered without his knowledge or consent by inserting the figure "8" before the words "per cent. interest," thus making it bear interest at the rate of 8 per cent. per annum, whereas as it was written, when signed, it did not bear interest.
The alteration in the note was a material one, and would undoubtedly vitiate the note had it remained in the hands of the payee. "It is a material alteration," says Mr. Randolph, "to add an interest clause, even without any fraud on the holder's part." 3 Randolph Com. Paper, section 1756. This conclusion is fully sustained by the decided cases. Hert v. Oehler, 80 Ind. 83; Bowman v. Mitchell, 79 Ind. 84, and cases cited; Schnewind v. Hacket, 54 Ind. 248; Shanks v. Albert, 47 Ind. 461; Boustead v. Cuyler, 116 Pa. 551, 8 A. 848; 1 Am. and Eng. Encyc. of Law, 510.
The ruling question, therefore, is whether the material alteration will avoid the note in the hands of the appellant. Our opinion is that, upon the facts stated in the answer, it does vitiate the note in his hands. The rule sanctioned by our cases is thus stated in Bowman v. Mitchell, supra: "Where an instrument is altered after its execution, it will be presumed, until the contrary is shown, that the alteration was made by the party claiming under it, or by some one under whom he claims, and it is not necessary, in an answer stating that an instrument sued on has been altered, to allege that it was altered by the party claiming under it, or by one under whom he claims." Cochran v. Nebeker, 48 Ind. 459; Noll v. Smith, 64 Ind. 511; Eckert v. Louis, 84 Ind. 99; Koons v. Davis, 84 Ind. 387. The answer made a prima facie case which the appellant could only defeat by showing that there was negligence on the part of the maker of the note, that the note was acquired for value without notice of any fraud and before maturity. Giberson v. Jolley, 120 Ind. 301, 22 N.E. 306; Koons v. Davis, supra. In the case of Marshall v. Drescher, 68 Ind. 359, the circumstances were such as to create the implication that the holder of the note had authority to fill the blank left in the instrument, and it was upon this ground that the note there under consideration was held valid. The case of McCoy v. Lockwood, 71 Ind. 319, asserts the doctrine that a material alteration will avoid a note even in the hands of a bona fide endorsee, refers to the cases of Holland v. Hatch, 11 Ind. 497, Schnewind v. Hacket, supra, and Collier v. Waugh, 64 Ind. 456, with approval, and denies that a note in the hands of a bona fide holder is enforceable where it was altered by writing in it a place of payment. The decision in that case is, therefore, strongly against the appellant.
The fourth paragraph of the answer contains much useless verbiage, but there are enough material facts stated to constitute a defence. Rejecting the useless matter and summarizing its material allegations, its substance is this: The defendant was old, infirm and ignorant; the payee of the note and the indorsees fraudulently conspired to cheat and defraud him; to effect their fraudulent purpose they falsely represented to him that they were introducing paints for the New York Roofing Company; that they would send to him ten gallons of the paint free of charge; they asked him to furnish his address; he complied, and wrote it on a postal card; afterwards two persons, in the service of the conspirators, came to him, and one of them represented that he was an attorney at law; they presented the postal card, upon which was written an order for one hundred gallons of paint, ten gallons to be free of charge and ninety gallons to be paid for at $ 2.25 per gallon. This order was written above the defendant's signature, and was there written without his knowledge. The agents presented the card, stated to the defendant that unless he signed a note they would do violence to him, and would at once sue him in the United States Court, compel him to pay a large amount of costs and sell his farm. Clark, one of the agents who represented the confederates, pretended to draw a weapon from his pocket, while the man with him stood guard at the front door of the defendant's house, and demanded that the defendant should sign the note. The defendant was then at his house on his farm, no one with him but his wife, and she, as the defendant himself, was old, feeble and ill. The defendant, through fear of violence, signed his name to the note, as he was ordered to do. As soon as it was signed Clark snatched it up and, against the will of the defendant, carried it away. The defendant demanded the return of the note, but Clark hurried from the house with it. No paint was ever delivered to the defendant, and he never received anything of value from the payee of the note or his confederates.
The answer shows a fraudulent conspiracy, and shows, also, that by a cunningly devised scheme the confederates secured the defendant's signature to the note, and it is therefore unquestionably sufficient, irrespective of the allegations of force and violence. It would be good even if it did not show that the appellant was a conspirator, participating in the...
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