22 Mo. 596 | Mo. | 1856
delivered the opinion of the court.
The plaintiff brought suit before a justice of the peace on a promissory note for $100. The defence was that it had been fraudulently altered after its execution, and without the consent of the makers. The plaintiff had judgment before the justice of the peace ; the case was then taken by appeal to the law commissioner’s court.
When the trial came off in the law commissioner’s court, the defendant objected to the reading o£ the note in evidence, because it bore marks or evidence on its face of having been altered and erased after its execution; that the plaintiff must first explain the alterations and erasures before she could read the note in evidence. The objection was overruled, and defendants excepted. The plaintiff then read the note in evidence and closed her case.
The defendants then proved that the words “ with interest from date” were added to the note after its execution. The defendants then asked several instructions, which were refused, and the law commissioner, on motion of the plaintiff, declared the law as follows : 1st, the plaintiff is not affected by any alteration or erasures or spoliation made on the note sued on unless the same was done by her, or by her knowledge or consent ; 2d, an agent has no implied authority to do an unlawful act, so as to bind his principals, unless such act is done by
It is not necessary to notice the instructions prayed for by defendants and refused, as the two first given for the plaintiff contained the proper rule on this subject, and the case was tried upon that rule. The 3d instruction given, although not correct, had nothing to do with the case. The alteration here was material, and if made by the party or with her consent, avoided the note, and this was the principle on which the case was decided. The 3d instruction then could do no harm, as we see the case was decided by the court below with proper regard to the principles on which such questions are settled.
Greenleaf says, “ if the alteration is noted in the alteration clause as having been made before the execution of the instrument, it is sufficiently accounted for and the instrument is relieved from the suspicion ; and if the alteration appear in the same handwriting and ink with the body of the instrument, it may suffice. In other words, if nothing appear to the contrary the alteration will be presumed to be contemporaneous with the execution of the instrument. But if any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing, but leaves the question of the time when it was done, as well as that of the person by whom, and the intent with which the alteration was made, as matters of fact, to be ultimately found by the jury, upon proofs to be adduced by the party offering the instrument in evidence. ” (Greenl. Ev. § 564.)
In this case, the addition of the words and the subsequent erasure of them was not brought home to the plaintiff. She is not bound by the illegal and unauthorized conduct of those who were her agents ; nor should she be affected by any act wrong in law and not within the scope of the agent’s authority or business, unless the act be sanctioned or subsequently affirm
Upon the whole record, we think the court below decided the case properly. The judgment must be affirmed;
