Spreng v. Juni
| Decision Date | 05 November 1909 |
| Docket Number | 16,264 - (46.) |
| Citation | 122 N.W. 1015,109 Minn. 85 |
| Parties | MARGARETHA SPRENG v. BENEDICT JUNI |
| Court | Minnesota Supreme Court |
Action in the district court for Brown county against Oscar Gag and Benedict Juni to recover $160 upon a promissory note. The complaint alleged that by mistake of defendant Juni and without the knowledge or consent of plaintiff the note was made payable to B. Gruenenfelder, and that after the execution of the note and before its delivery to the plaintiff, without the knowledge or authority of plaintiff the name of the payee was crossed out and the name of plaintiff was inserted therein. The answer of defendant Juni alleged that through the fraudulent representations of Gruenenfelder he was induced to sign the note as surety for defendant Gag, believing Gruenenfelder to be the owner of the money to be loaned; that after the note was signed Gruenenfelder, without the consent or knowledge of Juni erased the name of Gruenenfelder from the face of the note and put in the place thereof the name of Margaretha Spreng. The reply was a denial, except as to the allegations of the complaint. The case was tried before Olsen, J., and a jury which returned a verdict in favor of plaintiff for $176.80. From an order denying the motion of defendant Juni for judgment in his favor notwithstanding the verdict or for a new trial, he appealed. Affirmed.
Action on Promissory Note -- Alteration by Stranger.
In this, an action upon a promissory note in its original form, which had been changed by erasing the name of plaintiff's agent, who was named therein as payee, and inserting her own name, it is held:
1. The owner of a promissory note, in which a third party is named as payee, may maintain an action upon it without indorsement, upon proof of such ownership by evidence other than the note.
2. A change in a written contract by a stranger thereto is not an alteration, but a spoliation, which does not avoid it, and the obligee may enforce it in its original form, as if no change had been made.
3. If the change is made by an agent having no authority which includes the making of such change, it does not avoid the contract, unless ratified by the principal.
4. Evidence considered, and held sufficient to sustain the verdict for the plaintiff.
Albert Pfaender, for appellant.
Somerville & Hauser, for respondent.
Action upon a promissory note made by the defendant Gag, as principal, and the defendant Juni, as surety, who alone answered, and alleged that the note, after he signed it, was altered without his knowledge or consent. The plaintiff sought to recover upon the note in its original form before any change was made in it, and the jury returned a verdict in his favor for the balance due on the note. The defendant Juni appealed from the order of the district court of the county of Brown, denying his alternative motion for judgment or for a new trial, and here contends that there was no evidence to sustain the verdict; hence the trial court erred in denying his request for a directed verdict in his favor and his motion for judgment.
The evidence was, in some material respects, conflicting; but there was evidence fairly tending to show that plaintiff loaned $200 to the defendant Gag by her agent, B Gruenenfelder, in whose custody she had placed her money for safe-keeping, and to be loaned to such parties and on such terms as she might first approve; that she...
To continue reading
Request your trial