109 Ky. 222 | Ky. Ct. App. | 1900
OPINION OP THE COURT by
Affirming.
Appellant is a duly-incorporated bank, with the powers^ usually enjoyed by such institutions. On the 6th day of May, T898, it filed its petition in the Jefferson Circuit Court, wherein it alleged that on the 15th day of November, 1897, appellee and Joseph Clark executed and delivered to W. R. Noble their negotiable promissory note for $2,350; that before the maturity thereof Noble discounted and assigned the same note to it, and received the proceeds thereof; that it thereby became, and had ever since been, the owner and holder of said note; that upon the maturity thereof it was duly presented for payment, which was refused; and it asks for judgment therefor. The note sued on was filed as an exhibit with the petition, and is as fob low®: “Louisville, Ky., Nov. 18, 1897. $2,350.00. Four months after date, we promise to pay to the order of. ourselves twenty-three hundred and fifty dollars, without defalcation, value received, negotiable and payable at the
The grounds relied on for reversal are that the court erred in refusing to submit to the jury the question of Hai-deman’s negligence in executing the note sued on in blank, or ¿n such form as to invite the alteration therein complained of, by Clark, in such a manner as not to excite the suspicion of an ordinarily prudent business man upon an inspection thereof; and because the court failed to instruct the jury as to, whether or not the appellant in good faith received and discounted the note sued on, with or without
In the instructions given to the jury the issue was limited to the point as to whether or not the note sued; on had been changed or altered by the insertion of the figure “2” before the figures “350,” and the word “twenty” before the words “three hundred and fifty” in the body of the note, before it had been signed and delivered by appellee, Hal-deman.' IJpon the trial Haldeman testified unequivocally that both alterations were made after it had been signed and delivered by him. The main testimony conducing to rebut this statement of Haldeman was the face of the note itself, which clearly indicates that the words “twenty-three hundred and fifty” were all written in the body of the note in the same handwriting, and that the space occupied by the word “twenty” before the words “three hundred and fifty” was the space in which the word should 'have been written; and the further testimony based on the execution of a note in all respects similar, which was dated on Sunday, and which appellee, Haldeman, testifies was destroyed in his presence.
The law in this State is well settled that, if a negotiable bill or note is so negligently drawn, with blank spaces left for the addition of other words or figures, so that alterations can be made therein without exciting the suspicion of an ordinarily prudent business man, the loss ought to fall on the party in fault. See Woolfolk v. Bank, 10 Bush, 517; Blakey v. Johnson, 13 Bush, 204; Newell v. Bank, 13 Ky. Law Rep., 776. But it does not seem to us that this is. sue is raised by the pleadings. If Haldeman left the blank spaces in the body of the note where the word
As the instructions to a jury must be based upon and applicable both to the pleadings and the evidence, and. should neither be broader nor narrower than the pleadings, but should be predicated on all of the issues- raised by the pleadings and supported by the .evidence, they should not divert the attention of the jury to an issue not raised by the pleadings. See 11 Enc. Pl. Prac., 158, and the authorities there cited. The pleadings in this case allege, in substance, the execution of the note sued on. 'The answer denies this, and states that the note had been altered, and the alterations are set forth. The reply is, in substance, nothing more than a denial of the averments of the answer, and on this issue alone- the court properly instructed the jury, ignoring all others, and we are of the opinion- that the testimony supports the findings of the jury on this single issue. Judgment affirmed.
Petition for rehearing by appellant overruled.