Richardson v. Fellner
| Decision Date | 09 February 1900 |
| Citation | 1900 OK 47,60 P. 270,9 Okla. 513 |
| Parties | F. A. RICHARDSON AND S.E. RICHARDSON v. LENA FELLNER AND ELISHA PENNY. |
| Court | Oklahoma Supreme Court |
Error from the District Court of Noble County; before Bayard T. Hainer, District Judge.
¶0 1. WRITTEN INSTRUMENT--Proof of--Error. It is error to admit proof of the contents of a written instrument by secondary evidence until the loss of the original has been clearly shown, or its absence satisfactorily accounted for.
2. PROMISSORY NOTE--Lost Instrument--Proof of Contents. When a suit is brought to recover on a promissory note, and it is alleged that the note is lost and cannot be procured at the trial, proof that the note was delivered to an agent for the payee, and that the agent transmitted the note to the payee by mail, and that it was assigned to the plaintiff by the payee while yet in the hands of the agent, and that the plaintiff has never received the note, without in any manner attempting to prove by the payee that he never received the note, or that he had no knowledge of its whereabouts, is not sufficient proof of the loss of the note to entitle the plaintiff to prove its contents or tenor by secondary evidence.
3. SAME--Execution Denied--Burden of Proof. Where the execution of the note sued on is denied under oath by the defendants, who are the alleged makers, the burden is on the plaintiff to prove the execution of the note by at least a prima facie showing, before the note is entitled to be introduced in evidence, and the burden of proof is on the holder to prove the genuineness of the signature of the makers.
4. SAME--Alterations Alter Execution--Presumption. Where the execution of a note is denied under oath and on the trial the genuineness of the signatures to the note are admitted but it is claimed that a material alteration has been made in the note subsequent to its execution, the presumption will be entertained that all alterations or interlineations were made prior to and with the consent of the makers and the burden will be on the one alleging such alterations to show that they were made subsequent to the execution of the instrument, and without the consent of the makers.
5. SAME--Material Alteration Vitiates Instrument. Any alteration of a written instrument after its execution, without the consent of the parties, which varies the legal effect of the instrument, changes the operation of the contract or the rights or liabilities of the parties, though no fraud results, is a material alteration, and vitiates the instrument.
6. SAME--Recitals of--Rule Applied. When a promissory note recites on its face that it is given for the purchase price of the buildings on lot 1, and such note is altered by erasing the word "on", and inserting the word "and" so as to make the note read that it is given for the purchase price of the buildings and lot 1, such alteration is a material one, and vitiates such instrument.
7. SAME--Questions of Law and Fact. The question as to whether an instrument has been altered, is one of fact for the jury; but the materiality of the alteration is a question of law for the court.
8. CONTRACT--Transfer of--Vendor's Lien--Waiver. When the buyer of real property gives to the seller a written contract for payment of all or part of the price, an absolute transfer of such contract by the seller waives his vendor's lien to the extent of the sum payable under the contract; but a transfer of such contract as collateral security for the payment of some other debt does not waive the lien.
9. VERDICT--Error to Direct, When. Where there is any controverted question of fact before the jury, it is error for the court to direct the verdict.
H. B. Martin and James B. Diggs, for plaintiffs in error.
C. A. Morris and H. R. Thurston, for defendants in error.
¶1 The defendant in error, Lena Fellner, brought an action in the district court of Noble county against the plaintiffs in error, S.E. Richardson and F. A. Richardson, to recover judgment on a note for the sum of $ 500, executed by the Richardsons to Samuel Fellner, and by him assigned to Lena Fellner, as collateral security for another debt, and to have declared and enforced a vendor's lien for the amount of said note against certain real estate described in the note. S.E. Richardson and F. A. Richardson denied the execution of the note under oath. After some preliminary rulings and amendments of pleadings, which are not material here, the cause went to trial to a jury upon the issues made by the allegations of the last amended petition, and the plea of non est factum.
¶2 After the plaintiff had introduced her evidence and rested, the defendants demurred to the evidence. The demurrer was overruled, and proper exceptions saved by the defendants. After the defendants had submitted their evidence, the court took the cause from the jury, and directed a verdict for plaintiff for the amount claimed in the petition. The defendants filed their motion for a new trial, which was overruled, and proper exceptions saved, and they now bring the cause here by petition in error.
¶3 A number of errors are alleged to have been committed during the trial, by the trial court.
¶4 The copy of the note attached to the petition is as follows:
¶5 It was contended by the defendants below, that the note sued on had been altered after its delivery to the agent of the payee, by erasing the word "on" between the word "buildings" and the word "lot," and inserting in lieu thereof the word "and." That as originally executed the note was given "for purchase price of buildings on lot 1, in block 28, in the city of Perry, O. T.," and not "for purchase price of buildings and lot;" and this issue was presented by the verified denial of the execution of the note sued on. The note was originally taken by C. A. Morris, attorney for Samuel Fellner, was executed at Perry, O. T., at a time when the payee was a resident of and in New York City. The Payee, Samuel Fellner, assigned the note to his wife, Lena Fellner, by a written assignment, executed by a separate instrument, which instrument was executed in New York at a time and while the note was in the possession of Morris, at Perry.
¶6 The plaintiff alleged in her petition that the note was lost, and could not be produced on the trial of the cause; and on the trial the court permitted the contents of the note to be shown by secondary evidence. This ruling of the court is assigned as error.
¶7 It is a well settled rule of the law of evidence that secondary evidence cannot be used to prove the contents of a written instrument until the loss of the original has been shown, or its absence satisfactorily accounted for. In this case Morris, the attorney and agent for Samuel Fellner, the payee, testified that he had the note in his possession for a short time after its execution, and that he then transmitted it by mail to the payee, Samuel Fellner, in New York; that he had not had it in his possession since that time, and had no information or knowledge as to where the note was at that time. The plaintiff, Lena Fellner, testified that she had never had the possession of the note, and knew nothing of its whereabouts. On this testimony, the court permitted a copy of the note to be introduced in evidence.
¶8 This was prejudicial error. The loss of the note had not even been prima facie shown. The note was payable to Samuel Fellner. His agent, Morris, testified that he transmitted the note by letter through the mails to the payee in New York. No effort was made to show that Samuel Fellner had not received the note. The...
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