Williams v. Jensen

• Decision Date: 31 October 1882
• Citation: 75 Mo. 681
• Parties: WILLIAMS, Plaintiff in Error, v. JENSEN.
• Court: Missouri Supreme Court

75 Mo. 681

WILLIAMS, Plaintiff in Error,

v.JENSEN.

Supreme Court of Missouri.

October Term, 1882.

Error to Pike Circuit Court.--HON. G. PORTER, Judge.

AFFIRMED.

E. T. Smith for plaintiff in error.

1. The signing of the note by Mrs. Stonebreaker, she being a married woman without any separate estate, was an absolute nullity, and did not constitute a valid consideration for the agreement not to sue. Daniel Neg. Inst., (2 Ed.) 206; Mason v Morgan, 2 Ad. & El. 30; Howe v.Wilder, 34 Me. 566; Vansteenbergh v. Hoffman, 15 Barb. 28; Bauer v. Bauer, 40 Mo. 61. Therefore, the contract was not binding on the plaintiff and he could have sued at any time, and hence the surety was not discharged.

2. The note was not so altered by the signature of Mrs. Stonebreaker as to discharge the surety. Her signature was an absolute nullity, and the legal effect of the note was just the same before as after her name was affixed to it. The liability of Jensen was in no way altered by her signing. Catton v. Simpson, 8 Ad. & El. 136; 2 Parsons Bills, 549.

W. H. Biggs for defendant in error.

1. Any change of a written instrument which varies its original legal effect either in respect to the obligation or to the force and effect of the instrument itself as a matter of evidence is a material alteration, and will discharge all parties not consenting to the change. Haskell v. Champion, 30 Mo. 136; Medlin v. Platte Co., 8 Mo. 238; Moore v. Hutchinson, 69 Mo. 429; Evans v. Foreman, 60 Mo. 449; Capital Bank v. Armstrong, 62 Mo. 59; German Bank v. Dunn, 62 Mo. 79. It was sufficient for Jensen to show that the name of Mrs. Stonebreaker was added to the note without his knowledge or consent. Prima facie this would operate as a material alteration, and if the fact that she had no separate property would render the change an immaterial one, then it devolved on plaintiff to show this. 2 Daniel Negt. Inst., § 1389. But it makes no difference whether defendant's original obligation was changed by adding the name of Mrs. Stonebreaker or not, or whether plaintiff was in any way benefited by the change. If the identity of the instrument was destroyed, or its force and effect as a matter of evidence in any way varied, this makes the change a material one.

2. The proposition to Stonebreaker was that he should procure his wife's signature, and in consideration of that he was to have the extension. He procured the signature, and that constitutes a sufficient consideration for the promise for extension. The consideration is sufficient if he was put to any trouble or detriment in obtaining his wife's signature; any consideration, however small, will sustain the contract. If the contract had been that Stonebreaker should furnish good additional security, then probably the plaintiff would be right.

HOUGH, J.

On the 8th day of June, 1878, John E. Stonebreaker and the defendant, H. F. Jensen, executed a note to the plaintiff, A. W. Williams, for $475, due three months after date, on which this suit is founded. About the time of the maturity of the note, Williams agreed with Stonebreaker that if he would get his wife, Alicia M. Stonebreaker, to sign the note, he would extend the time of payment to August 1st, 1879. Williams knew that Jensen, who signed the note as joint maker, was surety only, and it is conceded that Jensen did not know at the time, that Mrs. Stonebreaker had signed the note, or that Williams had agreed to extend the time of payment, and he never consented thereto. There is no testimony tending to show that at the time she signed the note Mrs. Stonebreaker had any separate estate.

Jensen now contends that he is released from all liability on said note, for two reasons; 1st, Because the addition of the name of Mrs. Stonebreaker as a joint maker of said note is such an alteration as discharged him; and 2nd, Because the time of payment was extended by the plaintiff in pursuance of a valid contract therefor, without his consent.

1. MARRIED WOMAN SIGNING ANOTE, WITHOUTSEPARATE ESTATE: burden of proof

As the signature of Mrs. Stonebreaker imposed upon her no legal liability whatever, being in contemplation of law a nullity, the responsibility of the parties to the note was in no way increased or diminished or otherwise changed by the addition of her name thereto. Precisely the same legal liability attaches to all the parties, since Mrs. Stonebreaker signed the note, which previously attached to them, and the same rights and remedies, and none other, exist, which previously existed. If all the original parties to the note had consented to the addition of her name, it would not in the slightest degree have altered their relations to the note, or to each other. As the consent of the parties could add nothing to the validity of her signature, neither can the absence of consent constitute her signature an alteration of the note. When written, it was in the eye of the law, and still is, nothing--and the defendant remains liable just as he was before it was appended. It is...