Palmer v. Poor

• Decision Date: 23 November 1889
• Citation: 22 N.E. 984,121 Ind. 135
• Parties: Palmer v. Poor.
• Court: Indiana Supreme Court

121 Ind. 135
22 N.E. 984

Palmer
v.
Poor.

Supreme Court of Indiana.

Nov. 23, 1889.

Appeal from circuit court, Madison county; D. Moss, Judge.

Action on a promissory note by Charles Palmer against William Poor. Judgment for defendant. Plaintiff appeals.

Wm. S. Diven, for appellant. W. A. Kittinger and L. M. Schwinn, for appellee.

Elliott, C. J.

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 indorsed 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. 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 Rand. Com. Paper, § 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. St. 551, 8 Atl. Rep. 848, 1 Amer. & Eng. Cyclop. Law, 509. 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: “When 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 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, Id. 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, ante, 306, (this term;) 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...