McMurtrey v. Sparks

71 Mo. App. 126 | Mo. Ct. App. | 1897

Bond, J.

This suit is upon the following note:

“$400. June 9th, 1895.

“Six months after date I promise to pay to the order of J. E. MeMurtrey, administrator of the estate of J. P. MeMurtrey, four hundred dollars, at eight per cent. This note given in lieu of one nearly debarred. Value received with interest at eight per cent per annum. William Sparks.”

The answer averred that plaintiff with intent to make valid what he deemed invalid, had altered the date of note without defendant’s knowledge or consent, and hence the note was not executed by defendant. The cause was submitted to the court without a jury. There was an agreed statement of facts, to wit: “It is admitted by counsel that the note was originally dated on the ninth day of June, 1895; that the date was changed by plaintiff, the holder, to June 17, 1895, and then changed back again to its original date, June 9, 1895, and that the change was made by plaintiff for the reason that plaintiff thought the note was illegal, having been made on Sunday; that the plaintiff was afterward informed that he was mistaken and he changed it back to the original date. It is further admitted that the change was made on the note without the knowledge or consent of the defendant, and after it had been signed by defendant and delivered.” There was proof that the note in question was one given in consideration for one heretofore made by defendant to plaintiff’s intestate, which was “nearly out of date.” There was a verdict and judgment for defendant, from which plaintiff appealed.

Pm0a“érfaiafter0a-e' tion without consent of payor, effect of. The first point urged on this,appeal is, that the changes in the date of the note shown- in the agreed statement of facts did not avoid it as to defendant. The change of the date of a . . note is a material one, and when made bv 1 J the payee without the consent of the maker, the note is no longer valid againstthe latter. Moore v. Hutchinson, 69 Mo. 429; Bank. Fricke, 75 Mo. 178; Aubuchon v. McKnight, 1 Mo. 312; Wood v. Steele, 6 Wallace (U. S.), 80. A clear and comprehensive statement of the law on this subject is contained in the following language of Justice Swavne : "It is now settled, in both English and American Jurisprudence, that a material alteration in any commercial paper, without the consent of the party sought to be charged, extinguishes his liability.' The materiality of the alteration is to be decided by the court. The question of fact is for the jury. The alteration of the date, whether it hasten or delay the time of payment, has been uniformly held to be material.

"The grounds of the discharge in such cases are obvious. The agreement is no longer the one into which the defendant entered. Its indentity is changed; another is substituted without his consent; and by a party who had no authority to consent for him. There is no longer the necessary concurrence of minds. If the instrument be under seal, he may well plead that it is not his deed; and if it be not under seal, that he did not so promise. In either case, the issue must necessarily be found for him. To prevent and punish such tampering, the law does not permit the plaintiff to fall back upon the contract as it was originally. In pursuance of a stern but wise policy, it annuls the instrument as to the party sought to be wronged.” Wood v. Steele, loc. cit. 82, supra. Since the rule is that material alterations of notes and bills annul the obligations against unconsenting parties, it follows that their liability can only be restored by a new agreement with them. In other words, being released from the paper by one alteration thereof, they can not be rebound by another, made without their knowledge or consent. The point under review is therefore ruled against appellant.

•Change in date of note by in-without consent of payor: matei1abmtyroftion: payor. !Note taken by administrator, punyintercs,eii It is, however, urged that the changes of the date of the note in question were not alterations, but mere spoliations, and do not therefore prevent , t . . n . , A a recovery on tjae original contract. A material change in a bill or note made by . # a Person interested therein, is an alteration, Changes in such instruments by strangers or persons having no beneficial interest

therein, are spoliations. Spoliations do not annul the rights and obligations of the parties to the contract. State v. McGonigle, 101 Mo. 366, 367. In the case at bar the plaintiff administrator either had no right to take the note, or he had thfe right to fix its ° date, amount, rate of interest and other essential elements. He did take the note payable to himself, and brings this action to collect it. As payee and party to the note and plaintiff in a suit to enforce it, he is concluded from averring a want of interest in its proceeds. A party with whom a contract is made and who seeks to enforce its obligations, can not in such proceeding aver his want of interest in the contract or its subject-matter. The administrator of a decedent is the title holder of the personal assets of the estate for the purposes of administration, and has a pecuniary interest in them for the commission allowed him by law. The plaintiff in this case was not a stranger to the note, and the first change made by him in its date was a material alteration, not a spoliation, which avoided the instrument against the maker. The judgment in this case is affirmed.

Judge Biggs, concurs; Judge Bland not sitting.