34 Mo. App. 295 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This was an action begun in the circuit court of Monroe county, and was taken by change of venue to the Hannibal court of common pleas. The suit is based
“$250.00. Paris, Mo., Dec. 7, 1886.
“Ninety days after date, we promise to pay to the order of the National Bank of Paris, two hundred and fifty dollars, for value received, at the National Bank of Paris, at Paris, Missouri, and with interest at the rate of ten per cent, per annum.
( Signed. ) “ Irvine Chapman,
“ S. H. Nickell,
“ R. D. Chapman.”
Defendant, under oath, made the following answer: “Defendant, for answer to' the petition filed herein, denies that he executed or delivered the note sued on.”
At the conclusion of the trial the court refused instructions asked by plaintiff ; gave some of defendant’s instructions, and gave others on its own motion. Whereupon plaintiff took a non-suit with leave to move to set it aside. This motion was afterwards filed and overruled by the court, and to reverse this action, the plaintiff has prosecuted this appeal.
On the trial the defendant Nickell made two defenses. (1) That the signature to the note purporting to be his signature, was a forgery. (2) That material alterations of said note were made by plaintiff’s officers, and that the changes so made were without defendant’s knowledge and consent.
I. Counsel for plaintiff insists that under the pleadings, no evidence was admissible to show that said note had been changed ; that this was a matter of special defense, and should have been specially pleaded. Counsel would be right in this, if the alteration complained of had been made after the negotiation and delivery of the note to plaintiff. But as the change in the instrument was made before its delivery, or before any legal liability to pay the note attached
II. The court, of its own motion, gave the following instruction to-wit:
“In lieu of instructions asked by the defendant, the court of its own motion instructs the jury that although they may believe from the evidence that defendant signed the note sued on, yet if they find from the evidence that at the time defendant so signed the same, a. blank left for the rate of interest was unfilled, and that after, or at the time of the presentation to plaintiff’s president, I). H. Moss, the said blank, if any, was filled up by plaintiff president by writing the figures the number “ten” without the authority or consent of defendant at the time of negotiation, the jury will find for defendant.”
If the legal conclusion stated in this instruction be correct, then the note as to defendant Niekell is invalid, because the instruction is based on plaintiff’s evidence. The only direct testimony in the case touching the changes or alterations in said note, after it had been signed by defendant (if he signed it at all), was that of I). H. Moss, the president of plaintiff bank. He said
“$250.00. Paris, Missouri......188...
Ninety days after date, we promise to pay to the order of......................Two Hundred and Fifty dollars for value received at the National Bank, of Paris, Missouri, and with interest at the rate of.... per cent, per annum from maturity.”
That Chapman took the note away with him and on December 7, returned to the bank with the signatures to the note as herein stated. That witness, in the presence of Chapman, and with his consent, filled the blank date in the note by writing “December 7, 1886.” He then filled the blank for the name of the payee, by writing the words, “The National Bank of Paris.” That witness then filled the blank for the rate of interest with the figures “ten,” and then loaned Chapman two hundred and fifty dollars on the note. Defendant was not present, and there is no pretense that the blanks were filled with his knowledge or consent.
The general rule is, that when one delivers to another a note, containing blanks, to be used as security, the party delivering the note constitutes the other his agent, with authority to fill all blanks necessary to make the note complete and perfect as a note. The conduct of the surety or indorser in such a case implies a purpose or intention to become bound by a perfect and legal instrument. The filling of the blank
In view of this it will be unnecessary to notice other alleged errors complained of by plaintiff.
the judgment will be affirmed.