American National Bank v. Bangs

42 Mo. 450 | Mo. | 1868

Fagg, Judge,

delivered the opinion of the court.

This was an action by the holder of a promissory note against the defendants in error as the makers of the same; . The answer denied the execution of the note, and averred a want of knowledge or information sufficient to form a belief as to whether the plaintiff in error was. a corporation, or whether the note was assigned by the payees, and before maturity and for value. The judgment of the St. Louis Circuit Court at special term, in favor of the defendants, was affirmed on appeal to the general term, and is now brought here by writ of error.

There seems to have been no controversy at the trial, except as to the identity of the note sued upon. The defendants rested their whole case upon the fact that there had been a material alteration of the note after its execution. J. H. Bangs, one of the defendants, being introduced on the part of the plaintiff, testified that he had examined the note sued upon, and “ that the signature thereto of ‘ Bangs & Beady5 was the genuine signature of said firm, made by said witness.” On cross-examination, he stated further that “the words ‘at Goodyear, Bros. & Durand’s, New York, Jan. 10-13,’ placed at the foot of said note, to the left of the signature, were written there after the making of the said note, and without the knowledge or consent of the defendants ; that the note as it now reads is not the note of the defendants; that they never promised or agreed to pay the same at Goodyear, Bros. & Durand’s, New York; that otherwise the note was as it was originally made, and was altered in no other respect.”

The question, then, is whether these words attached to the foot of the instrument are to be taken as a part of it or only a private memorandum, which can in no way affect the liability of the makers. It will be found upon an examination of the authorities upon this question that where such words are not incorporated in the body of the contract itself, nor in any manner annexed to the instrument by the maker for the purpose of fixing a place of payment, they are to be taken as a mere memorandum, and therefore immaterial. (Story on Prom. Notes, § 49; Exon v. Russell, 4 M. & S. 505; Williams v. Waring, 10 Barn. & Cres. 2.) The same doctrine is fully recognized by the American courts in all the leading cases that have been examined. (19 Johns. 391; 24 Wend. 374.)

It should be kept in mind that this action is against the makers themselves. It was not declared upon as a note payable at the city of New York. There is no contest here as to a right to tender the amount at any designated place of payment, but simply as to-the effect of the addition upon their general liability to pay. The’ principle is everywhere recognized that the maker is generally and; universally liable, and a demand at the place is not a condition precedent of payment. (Nazro v. Fuller, 24 Wend. 374.) The memorandum in this case does not increase or vary in any respect the liability of the defendants, and therefore presents no obstacle to the recovery of the plaintiff. It is admitted that in cases where there was a contest between the holder and indorser, such an addition or memorandum, without the knowledge and consent of the latter, has been held sufficient to discharge him. But as to the makers themselves, the question is altogether different. This opinion has proceeded upon the idea that the words in question were simply a memorandum made at the bottom of the note after its execution, and not intended to be a part of the contract itself. Such appears to be the fact, so far as the case is presented here by the record, but we will not assume it to be so for the purpose of entering up judgment in this court. The case proved at the. trial did not authorize the declaration of law made by the court that the plaintiff was not entitled to recover.

Its judgment will therefore be reversed and the cause remanded for further trial.

The other judges concur.