133 S.W. 1093 | Tex. App. | 1910
L. A. Clarke and H. A. Kight filed this suit in the County Court of Haskell County to recover from B. T. Lanier and W. R. Miller the amount of a promissory note dated November 14, 1908, for the sum of four hundred and seven dollars and twenty-five cents, due thirty days after date, payable to the order of W. R. Miller, providing for ten per cent interest per annum from maturity and ten per cent attorney's fees. They alleged that said note was executed by Lanier and delivered by him to W. R. Miller and that afterwards, before maturity, in due course of trade, for a valuable consideration they became the owners of said paper.
Miller filed no answer, and the defendant Lanier filed his sworn plea of non est factum, the particular vice in said note sought to be reached by the plea being that the note had been fraudulently altered after its delivery to Miller by erasing therefrom the following memorandum: "The consideration of this note to be paid by four lots in Bunkley's Addition to the town of Stamford."
Plaintiffs replied that if such alteration had been made they had no notice of the same, and that said note was by defendant Lanier so carelessly drawn and made that such change, if any, did not and does not show or evidence itself to plaintiffs or any other prudent person, whereby *268 the defendant is estopped to deny the execution of the note as sued on. The court thus submitted the case to the jury:
"In this cause you will find for plaintiffs for the full amount sued for, unless you find for defendant B. T. Lanier under the following instructions, viz.: If you find from the evidence that at the time the note in question was transferred by W. R. Miller to L. A. Clarke and H. A. Kight after certain alterations of said note were made, and that said L. A. Clark and H. A. Kight knew or had cause to know that an alteration of said note had been made, then and in that event you will find for defendant B. T. Lanier; or if you find from the evidence that there was an alteration of said note made after it came into possession of L. A. Clark and H. A. Kight, then, and in that event, you will find for defendant B. T. Lanier."
There was a finding for the plaintiffs, and judgment was accordingly entered against both Lanier and Miller and Lanier has appealed.
The evidence was such that the jury could have found that no alteration of the note was ever made, and the court should not, therefore, have assumed, as he did in the charge quoted, that the alteration had been made. But this error is in appellant's favor and no one is complaining of it and we only mention it in view of the reversal of the case.
Under the instruction the jury were required to find against appellant if the note had been fraudulently altered after it left his hands unless the jury further found that the alteration was made after the paper came into the hands of plaintiffs or that they knew or had cause to know of the same. This ought not to be the law in this State. There are many authorities here and elsewhere holding that where a maker of a note or bill delivers it in an uncompleted condition, as, for instance, with unfilled blanks in its body, he impliedly authorizes the payee or drawee to perfect the instrument by filling the blanks, and will be held liable to an innocent holder of the paper as against a plea of non est factum. The principle is discussed by our Supreme Court in Farmers'
Merchants' National Bank v. Novich,
Some courts have gone very much further and made the issue to turn upon the question whether or not the maker had been negligent in the execution of the instrument and, if he had, have held him liable upon the altered instrument, even though the alteration was forgery and a felony. Indeed, some of the authorities go to the extent of holding, as the court in the charge quoted assumed, that it is negligence as a matter of law for a maker to attach to a note a condition written in *269
pencil, as this one was, in such manner as easily to be erased without defacing the note. Such is the holding in Harvey v. Smith,
But we believe the better reasoning and the weight of authority is otherwise. It is not fair to apply the maxim, "Where one of two innocent parties must suffer loss by the fraud of a third, he who had made the loss possible by his negligence must bear the burden of loss," or "He who trusts most should suffer most," for in such a case it can not be said that the maker who delivers a perfect and completed note or bill into the hands of another trusts more than he who purchases the same from that other on his guarantee of its genuineness. Strictly speaking, the doctrine of estoppel ought not to apply except in those cases where the person making the alteration is in some way clothed with agency, as by an apparent authority to make the change.
Any material alteration in an instrument evidencing a pecuniary liability is forgery, and it can not be said that the maker of a negotiable or non-negotiable note ought to anticipate that any one would commit a forgery and, therefore, be required to so execute his instrument that such a forgery would be difficult if not impossible. The law attaches great importance to that quality of commercial paper known as negotiability, and has gone very far in protecting innocent holders of such paper against all manner of defenses when interposed by the maker, but it should never go to the extent of holding such maker liable upon a contract different from what it appeared to be when it left the maker's hand. In Waite v. Pomeroy,
While the condition, the erasure of which is made the basis of appellant's plea, is shown to have been made in pencil and on the margin of the note beneath appellant's signature, nevertheless it constituted an integral part of appellant's contract and together with other portions *270 made up a completed instrument, and if the condition was removed as alleged by him such fact will constitute a complete defense to appellees' suit. "The simple and fair rule for all is that the purchaser of paper, whether negotiable by the law merchant or not, is put upon inquiry as to the genuineness of the paper in all its material parts by the mere fact that it is offered for sale; and if he sees fit to omit making inquiry of the maker he buys at his own risk and upon the faith of his immediate endorser or other parties, if any, against whom he may have recourse." Cronkhite v. Nebeker, supra.
For the charge given the judgment is reversed and the cause remanded for another trial.
Reversed and remanded.