55 Mo. App. 184 | Mo. Ct. App. | 1893
The plaintiff, who is indorsee of a promissory note, instituted suit thereon against the defendant before a justice of the peace. The note sued upon was filed with the justice as the only statement of a cause of action. As the defendant’s name appeared on the back of the note above that of the payee, and as it furthermore appeared in evidence that it was put there before the payee signed his name, the plaintiff’s counsel was asked upon the trial of the cause in the circuit court in what capacity he sought to charge the defendant, and replied as indorser. The plaintiff offered no evidence tending to show a presentation of the note to the maker at maturity, or a notice of its dishonor to the defendant. The court rendered judgment in favor of the defendant, and the plaintiff appeals.
The plaintiff now contends that the defendant did not defend on that theory in the circuit court. It is immaterial what the theory of the defendant’s evidence was, as long as all the evidence fails to show any cause of action upon the plaintiff’s part. We may add, however, that, even if this insuperable objection were out of the way, we could not disturb the judgment, since there was substantial evidence to show that the note had been materially altered without the defendant’s consent after he had indorsed it, which under the settled law of this state discharged the defendant, if he so elected. Haskell v. Champion, 30 Mo. 139; Evans v. Foreman, 60 Mo. 449.
The judgment is affirmed.