179 Mo. App. 488 | Mo. Ct. App. | 1913
This is a suit upon a promissory note given plaintiff bank by defendant for money loaned him and placed to his credit at the bank. The instrument as offered in evidence was in the following form*.
“$1000. “St. Louis, Mo., Feb. 14, 1908.
‘ ‘ Six months monthly after date I promise to pay to the order of Olive Street Bank.................. ................................at the office of the
OLIVE STREET BANK of St. Louis,
One Thousand........................DOLLARS,
For value received, with interest at the rate of 8 per cent per annum from date until maturity, and at eight per cent from maturity until paid; payable monthly, annually. If the interest is not paid when due, it shall become as principal and bear the same rate of interest.
“Gr. M. Phillips,
“Commercial Bldg.”
. The petition charged “that defendant, on the 14th day of February, 1908, .by his negotiable promissory note of that date, by him duly executed and delivered, promised for value received to pay to plaintiff, six months from said 14th day of February, 1908, aforesaid, the sum of one thousand dollars, with interest at the rate of 8 per cent per annum until paid, from and after the date thereof.”
The answer, which it is said was verified by affidavit, denied the execution of the note “described in plaintiff’s petition, or any promissory note, in the
A reply was field, averring that whatever changes, if any, were made in the note sued on, were made with the knowledge and consent of defendant; and that if any alterations were made therein after the execution thereof by defendant, the same were fully ratified and approved by him.
The defense interposed pertains to alterations claimed to have been made in the note, after delivery, and without the knowledge and consent of the defendant ; it being contended that such alterations were material and vitiated the instrument. It is asserted by defendant that the words “monthly” and “eight,” which we have underscored in the note as set out above, were inserted in such places therein, and the word “annually” stricken out in the interest clause thereof, after delivery, and without defendant’s knowledge and consent.
I. The first point raised, however, and for which it is said the judgment should be reversed, is that the note offered in evidence is an entirely different note from that declared upon in the petition; and that as to the cause of action contained in the petition, there was a total failure of proof. This assignment of error is predicated upon the fact that the petition declares upon a note bearing “interest at the rate of 8 per cent per annum until paid, from and after the date thereof;” whereas, the note offered in evidence provides “for interest at the rate of eight per cent per annum from date until maturity, at eight per cent from maturity until paid; payable monthly,” and provides that “if the interest is not paid when due it shall become as principal and bear the same rate of interest.”
But we are not persuaded that there was a total failure of proof of the cause of action alleged, i. e., a
At most, the matter here complained of can only be said to be a variance between the allegata and the probata. And it is well settled that where a variance is claimed, the party complaining thereof must not only interpose timely and specific objection to the introduction of the evidence offered, but that the objecting party must proceed in the manner provided by section 1846, Revised Statutes 1909, otherwise he will not be heard to complain on this score. This section provides for the filing of an affidavit of surprise; and if a party fails to avail himself of this section it is too late to complain in the appellate court. [See Fisher Co., etc. v. Realty Company, 159 Mo. 562, 62 S. W. 443; Rundelman v. Boiler Works Co., 178 Mo. App. 642, and authorities there cited.] The appellant here filed no such affidavit and is now in no position to ask for a reversal of the judgment below upon the ground of a variance between the pleadings and proof, should any exist.
As the cause was tried below before the court without a jury, a jury having been waived, and no declarations of law were asked by either party and none given, if there is any substantial evidence upon which to base the judgment below, and if the latter can be held to be correct upon any theory whatsoever, it is our duty to sustain it. It was for the court, thus sitting as a jury, to determine the controverted question of fact presented to it; and we must presume that the court made a proper application of the law to the facts. The court evidently found against defendant upon his claim that the note had been altered after it left his hands. At any rate there was substantial evidence to justify such finding, and hence in this state of the record the judgment is conclusive upon us.
In this view, it is unnecessary to discuss the question whether the changes alleged to have been made in the note were material alterations, under the provisions of the Negotiable Instruments Law, which was-in effect at the time the note was executed.
For the reasons given above the judgment of the circuit court should be affirmed. It is so ordered.-