10 Colo. 107 | Colo. | 1887
This is an action upon a promissory-note by the plaintiff (appellant) against the defendants (appellees). The complaint states that plaintiff was assignee of the insolvent corporation, the Bank of Breckenridge, to pay its debts with its property; that defendants upon the 17th day of February, 1881, made and delivered for value to one W. W. Goodrich their promissory note at eleven days for §714.12; that Goodrich, for value, before maturity, sold and transferred this note to the Bank of Breckenridge, which bank afterwards transferred and assigned to plaintiff for purpose aforesaid; that the note is due and unpaid. Prays judgment for the amount and costs. The answer, all the defendants answering jointly, states that they made to Goodrich their certain promis
“$7M.12. Breckenridge, Colo., February 17, 1881.
‘ ‘ Elevén days after date we promise to pay to the ord sr of W. W. Goodrich seven hundred and forty-four an 1 12-100 dollars, with interest at-per cent, per -from-until paid. “ E. J. Collingwood.
“Geo. H. Bressler.
“R. B. Stapp.
“W. J. Swift.”
That this note was delivered to said Goodrich in those words and figures. That said Goodrich indorsed said note over to the bank, but they have no knowledge, etc., as to whether or not the bank purchased said 'note or paid value. That, at the date of this transaction, one Allen was a director, stockholder, and the cashier of said bank, and then and there materially altered said note, and changed defendants’ liability, by inserting the word “two” between the words “at” and “per cent.;” the word “month” between the words “per” and “from,” and the word “date” between the words “from” and “until;” thereby making the note read, “with interest at two per cent, per month from date until paid.” That such alteration was without the knowledge or consent of defendants, and was a forgery and fraud upon the defendants, and the note was thus rendered null and void. That they repudiated this alteration, and refused to pay, as soon as they learned that it was altered. Plaintiff demurred for that the facts pleaded in the answer were not sufficient to constitute a defense. This demurrer was argued, and the court overruled the same; and, the plaintiff standing upou and abiding by his demurrer, judgment was rendered for defendants and against the
The demurrer admitted all the facts well pleaded in the answer. So we have the case. The note was made and delivered to payee as shown above, before maturity. It was indorsed by the payee to the bank, and was then and there filled up by the bank, without the knowledge or consent of the makers, so that it reads, “with interest at two per cent, per month from date until paid.” The questions presented by the assignment of errors and the argument of counsel here are:
1. Does such a note, with such blanks, thereby carry authority to the purchaser thereof to fill the blanks in the manner here shown, whereby the rate of interest is changed from the legal rate, viz., ten per cent, per annum, to twenty-four per cent, per annum? We answer not. Rainbolt v. Eddy, 34 Iowa, 440; Bank v. Stowell, 123 Mass. 196; Holmes v. Trumper, 22 Mich. 427.
2. Is the note vitiated and avoided by such change in its terms by the purchaser, without the knowledge or consent of the makers ? We answer that it is, for thereby it ceases to be the promise they made, and the effect is the extinguishment of the promise. 1 Greenl. Ev. § 565; McGrath v. Clark,, 56 N. Y. 35; Inglish v. Breneman, 5 Ark. 377; Coburn v. Webb, 56 Ind. 96.
The judgment in the case ought to be affirmed.
Rising and Macon, 00., concur.
For the reasons assigned in the foregoing opinion the judgment is affirmed.
Affirmed.
