Whitmer v. Frye

• Decision Date: 31 January 1847
• Citation: 10 Mo. 348
• Parties: WHITMER v. FRYE.
• Court: Missouri Supreme Court

10 Mo. 348

WHITMER

v.FRYE.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO CALDWELL CIRCUIT COURT.

DUNN, for Plaintiff. 1st. The alteration of the instrument sued on by the plaintiff below, without the consent of the defendant below, renders it null and void. 2 Blacks. Com. 308. 2nd. The proof of such alteration, offered by the defendant and rejected by the court, ought to have been received under the issue made by the plea of non est factum. 2 Starkie's Ev. 480; 1 Chitty's Pl. 519. 3rd. Such evidence is admissible, notwithstanding the plea is not verified by affidavit. 4 Mo. R. 238; 8 Mo. R. 13.

STRINGFELLOW, for Defendant.

SCOTT, J.

This was an action of debt on a sealed instrument. The delaration contained a count on the instrument and the money counts. Pleas, non est factum to the count on the instrument, and nil debet to the common money counts.

On the trial the plaintiff offered to read the instrument sued on in evidence; the defendant objected to the instrument going in evidence, because, as he alleged, it had been altered in a material part by the plaintiff without his consent; that the instrument, as originally executed, bore twelve per cent. interest, and that it had been altered so as to bear but ten per cent. The court overruled the objection. The defendant then offered to prove the death of the subscribing witness, and that the instrument had been altered as above stated. This evidence was rejected, and the instrument permitted to be read to the jury. There was some evidence of the receipt of money from the plaintiff by the defendant.

The evidence offered under the plea of non est factum was clearly admissible-- no affidavit was necessary in order to let in the defense of the instrument having been altered by the plaintiff. When an instrument appears on its face to have been altered, the law presumes that the alteration was made before its execution. The defendant clearly had a right to show that it was made subsequently by the plaintiff, without his consent. It is plain that such a defense is allowable under the plea of non est factum. 2 Greenl. 247. There is no question but that the alteration was a material one, and it is prima facie fraudulent.

Where a party, by his own act, renders an instrument so that it cannot be the foundation of any legal remedy, he will not be permitted to prove the covenant or promise contained in it by any other evidence. This principle will prevent a resort to the common counts in order to sustain the...