75 Mo. 178 | Mo. | 1881
L
Action on a promissory note, which was in these words:
“$1,500 Springfield, Mo., July 8th, 1876. .
Four montns after date we or either of us promise to pay to the order of J. Newton,'‘Presdt.,’ at the First Na*180 tional Bank of Springfield, Missouri, $1,500, for value received, without defalcation or discount, with ten per cent, interest per annum after due until paid.
J. Newton, ‘ Presdt. O. E. B. Ass’n.’
J. W. McCullah,
D. L. Griffith,
G. W. Ericke.”
Indorsed as follows :
“ J. Newton, Presdt.’
The note as originally drawn, was:
“ $1,500. Springfield, Mo., July 8th, 1876'.
Eour months after date we or either of us promise t-o> pay to the order of J. Newton, at the Eirst National Bank, of Springfield, Missouri, $1,500 for value received, without defalcation or discount, with ten per cent interest per annum after due until paid;
J. Newton,
J. W. McCullah,,
D. L. Griffith,
G. W. Ericke.”
Indorsed as follows;
“ J. Newton.”
The defense was non est factum. The evidence shows-clearly that the note, long after its execution, was altered by Job Newton at the request and in the presence of Mc-Elhaney, president of plaintiff, and in the absence of and without the knowledge or consent of defendants.
This unauthorized alteration so changed the instrument that defendants were no longer bound thereby. A very stringent rule has long been maintained by this court" in regard to such alterations of written instruments — a rule which conforms to the policy of the law, and very properly forbids any tampering with written instruments,, by those to whom their custody is necessarily confided. In Haskell v. Champion, 31 Mo. 136, one B. F. C. C., a member of the firm of Champion & Co., executed a promissory
The doctrine thus laid down has been repeatedly followed since. In Evans v. Foreman, 60 Mo. 449, we said:
And the ruling enunciated in the cases cited as to a written contract being avoided by an immaterial or the “slightest” alteration, is no new thing under the sun. This has been the rule in New Jersey since 1824, where it is held that any alteration of an instrument by the party claiming an interest under it, avoids the instrument. Den v. Wright, 2 Halst. 175; Bell v. Quick, 1 Green 312; Hunt v. Gray, 6 Vr. 227; s. c., 10 Am. Rep. 232. In the last case, Beasley,, C. J., said: “ The reasons for this rule are obvious and of the most solid character. In its absence the inducement, to fraud would be very strong, and public policy requires, that, in the language of Lord Kenyon, ‘ No man shall be-permitted to take the chance of committing a fraud without running any risk of losing by the event when-it is. detected.’ Even immaterial alterations are fatal, as the-rule, to be efficacious, cannot permit a person to tamper in any degree with the written contract of another in his possession.” Under these authorities, whether the altera- , tions made in the note in suit were material or immaterial,,
In this case, .however, the alterations were palpably material; it changed the note in tírese important particulars : it made the note payable to a different payee; to the representative of an incorporated company, instead of an individual; .it changed the first maker of the note from an individual to an incorporated company, and lastly, it changed the individual indorser and made his indorsement that of the president of such company. And, as seen from-the foregoing authorities, the motive which prompted the alteration,, whether innocent or fraudulent, cannot affect the result. See also Miller v. Gilleland, 19 Pa. St. 119; Neff v. Horner, 63 Pa. St. 327; s. c., 3 Am. Rep. 555; Fulmer v. Seitz, 68 Pa. St. 237; s. c., 8 Am. Rep. 172.
II.
But it is said that as McElhaney was not the custodian of the note and was in no way empowered by the board to act with reference to the same, what he did was the act of a stranger, and could not bind the plaintiff. This remark is doubtless true if McElhaney had no original authority to procure the alteration, or if his conduct in this regard did not meet with the subsequent sanction of the plaintiff. But this ratification occurred. The payment of the $600 on the note by the Odd Fellows’ Building Association ; the acceptance and receipt of the same by the bank, and the subsequent bringing, by the regular attorney of the bank, of a suit in the’ common pleas court on the note as altered, are not susceptible of any other construction than that the bank ratified what had been done. And the facts recited show also ratification by the Odd Fellows’. Building Association of their president’s act. There is no ground, therefore, for calling either the act of McElhaney or that of Newton the act of a stranger. “If a corporation ratify the unauthorized act of its agent, the ratification-is equivalent to a previous authority, as in case of natural
III.
And it was perfectly competent to show by parol evidence what the abbreviations placed in connection with Newton’s name and signature meant, to afford an explanation of such abbreviations, and to show upon whom the liability arising from the alteration was intended to be cast. Washington Mutual Fire Ins. Co. v. St. Mary's Seminary, supra, and cases cited; Field on Corp., §§ 197, 198.