5 Neb. 223 | Neb. | 1876
I. The action in the court below was brought by the plaintiffs, as indorsers of two promissory notes executed by the defendant, for $167.50 each, negotiable and payable in twelve and eighteen months respectively. By the bill of exceptions it appears, that the plaintiffs received said notes in the,ordinary course of business before maturity, paying therefor a valuable consideration, so that they are to be regarded in the light of innocent holders of commercial paper. The defense, which seems to have been relied upon on the trial, and in respect to which the alleged errors occurred, consisted of an alteration of these notes by, the payee, before they were transferred to the plaintiffs. This alteration was effected by detaching from each of the notes the words, “this note is given upon condition,” which had been appended thereto by the maker, after he had signed them, but before their delivery to the payee.
Of themselves, these words were wholly ineffectual to vary or modify the terms of the notes to which they were attached, even as between the maker and payee.
We hold, that, when the plaintiffs had established the fact of their being bona fide holders of these notes, for value, they were entitled to a verdict in their favor, notwithstanding the alleged alteration. It follows, therefore, that the testimony of the two witnesses, Riggs and McPherson, as to the alteration, and to which the plaintiffs objected, on the ground of its immateriality, should have been excluded from the jury. Its admission gave the jury to understand that it was material to the issue, and proper to defeat a recovery on the notes. In this, we think, there was error, which calls for a reversal of the judgment.
In the instruction which the court substituted for this one, there is error in the portion which we have italicised, by which the jury were intrusted with the duty of deciding upon the materiality of the alteration. This duty rests upon the judge presiding at the trial, and could not be shifted upon the jury. Further, we are of opinion, that the instruction given by the court, on its own motion, was well calculated to mislead the jury, for while abstractly considered, it states the law respecting the alteration of commercial paper correctly, it was inapplicable to the case as made both by the pleadings and the evidence. The jury were given to understand, by the silence of the court on that point, that the alleged alteration, if established, was fatal to the plaintiffs’ case. They should have been told that it was of no conse
For these reasons the judgment of the court below is reversed, anda new trial awarded.
Judgment accordingly.