Paramore v. Lindsey

• Decision Date: 31 May 1876
• Citation: 63 Mo. 63
• Parties: GIDEON C. PARAMORE, Respondent, v. JOHN M. LINDSEY, AND FRANCIS M. POULSON, Appellants.
• Court: Missouri Supreme Court

63 Mo. 63

GIDEON C. PARAMORE, Respondent,

v.JOHN M. LINDSEY, AND FRANCIS M. POULSON, Appellants.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Clinton Circuit Court.

J. E. Merryman, with J. F. Harwood, for Appellants.

I. The fact that the other two notes were given to another person for his interest in some cattle ought not to exclude them from the jury. They were a part of the res gestæ.

II. The court was bound to hear evidence, under the motion for a new trial, in regard to the character of the alleged discussion of the jury. Until an investigation was had, the court could not know that no injury resulted.

III. The court erred in giving the third instruction asked by respondent. Where the alteration or interlineation appears on the face of the instrument, the party having the possession of the instrument, and claiming under it, ought to be called upon to explain it. It is presumed to have been done while in his possession. (U. S. vs. Linn, 1 How. 104.) In Massachusetts and this State the rule is held, that there is no presumption concerning alteration such as interlineation and erasures; but that it is a question for the jury to determine under all the circumstances and evidence. (See Matthews vs. Coalter, 9 Mo. 696.)

T. S. Turney & S. H. Corn, for Respondent.

I. The court did not err in permitting the note to be read to the jury after inspecting it and ascertaining the character of the alteration. If no ground of suspicion is apparent on the face of the instrument, the alteration will be presumed to be cotemporaneous with, or anterior to, its execution. (Matthews vs. Coalter, 9 Mo. 705; Lubbering vs. Kohlbrecher, 22 Mo. 596; 1 Greenlf. Ev. § 564 and cas. cit.) II. Injury to the party complaining must be shown to have resulted from the misconduct of the jury, before their verdict will be disturbed. (Mardenburg vs. Crary, 15 How. Pr. 307; Smith vs. Thompson, 1 Cow. 221; Norton vs. Norton, 2 Cow. 589; Wilson vs. Abraham, 1 Hill. 207; Whitney vs. The State, 8 Mo. 165; The State vs. Barton, 19 Mo. 227.)

WAGNER, Judge, delivered the opinion of the court.

This was an action by the plaintiff as indorsee of a negotiable promissory note against the defendants as makers.

The note was duly indorsed and transferred before maturity; and the defense set up was that it was altered after defendants signed and delivered it. The alleged alteration consisted in the erasure of the words in the printed form ““after maturity,” the effect and operation of which was to make the note draw interest from date. Whether there was an alteration, as the defendants contend, was a question of fact; and as the jury by their verdict have negatived the allegation and found for the plaintiff, the judgment in his behalf cannot be disturbed, unless the court committed some error in its rulings upon questions of law.

There are three points relied on by the appellants, 1st, that the court ruled out proper and legitimate testimony; 2nd, that it gave an improper instruction for the plaintiff and rejected a proper one offered by the defendants; and 3rd, that there was misbehavior on the part of the jury.

1. The defendants, in support of the issue thus tendered, offered to read in evidence two other notes given to different parties, but which arose out of the same transaction. These notes bore interest after maturity, and the court excluded them as irrelevant.

We think the ruling was correct. Because other notes given to different parties did not bear interest till after they became due, they did not furnish any necessary or sufficient connection to show that the note in question was made with interest payable at the same time. The agreement might have been wholly different between the respective parties as to the payment of interest; and the difference in the manner in which the notes were drawn would not be a presumption that one was right more than the other.

2nd. The question arising upon the instructions relates to the courts giving the third instruction for the plaintiff, and refusing the fourth instruction asked for by the defendant. The instruction given tells the jury that the law presumes that an erasure of such character as that which appears on the face of the note sued on, was made either prior to, or, at the time of, the execution of the note; and that the burden of overcoming this presumption devolved on the defendants. The instruction refused asserted the converse of the proposition contained in the above declaration, and stated that the alteration of the note appearing on its face, the burden of proof was on the plaintiff to explain the same to the satisfaction of the jury. The court had previously instructed that if the...