121 Ind. 135 | Ind. | 1889
— The appellant’s complaint is founded on i a promissory note which it is alleged was executed by the appellee to A. J. Selby, by Selby endorsed to Theodore Fields, and by the latter to the appellant before maturity and for value. The note is negotiable by the law merchant.
The alteration in the note was a material one, and would undoubtedly vitiate the note had it remained in the hands of the payee. “ It is a material alteration,” says Mr. Randolph, “to add an interest clause, even without any fraud on the holder’s part.” 3 Randolph Com. Paper, section 1756. This conclusion is fully sustained by the decided cases. Hert v. Oehler, 80 Ind. 83; Bowman v. Mitchell, 79 Ind. 84, and cases cited; Schnewind v. Hacket, 54 Ind. 248; Shanks v. Albert, 47 Ind. 461; Boustead v. Cuyler, 116 Pa. St. 551; 1 Am. and Eng. Encyc. of Law, 510.
The ruling question, therefore, is whether the material alteration will avoid the note in the hands of the appellant. Our opinion is that, upon the facts stated in the answer, it does vitiate the note in his hands. The rule sanctioned by our cases is thus stated in Bowman v. Mitchell, supra: “ Where an instrument is altered after its execution, it will be presumed, until the contrary is shown, that the alteration was made by the party claiming under it, or by some one under whom he claims, and it is not necessary, in an answer stating that an instrument sued on has been altered, to allege that it was altered by the party claiming ’'under it, or by one under whom he claims.” Cochran v. Nebeker, 48 Ind. 459; Noll v. Smith, 64 Ind. 511; Eckert v. Louis, 84 Ind. 99; Koons v. Davis, 84 Ind. 387. The answer made a prima facie case which the appellant could only defeat by showing that there was negligence on the part of the maker of the note, that the note was acquired for value without notice of any fraud and before maturity, Giberson v. Jolley, 120 Ind. 301; Koons v. Davis, supra. In the case of Mar
The fourth paragraph of the answer contains much useless verbiage, but there are enough material facts stated to constitute a defence. Rejecting the useless matter and summarizing its material allegations, its substance is this: The defendant was old, infirm and ignorant; the payee of the note and the indorsees fraudulently conspired to cheat and defraud him ; to effect their fraudulent purpose they falsely represented to him that they were introducing paints for the New York Roofing Company; that they would send to him ten gallons of the paint free of charge; they asked him to furnish his address; he complied, and wrote it on a postal card ; afterwards two persons, in the service of the conspirators, came to him, and one of them represented that he was an attorney at law; they presented the postal card, upon which was written an order for one hundred gallons of paint, ten gallons to be free of charge and ninety gallons to be paid for at $2.25 per gallon. This order was written above the defendant’s signature, and was there written without his knowledge. The agents presented the card, stated to the defendant that unless he signed a note they would do violence to him, and would at once sue him in the United States Court, compel him to pay a large amount of costs and sell his farm. Clark, one of the agents who represented the confederates,
The answer shows a fraudulent conspiracy, and shows, also, that by a cunningly devised scheme the confederates secured the defendant’s signature to the note, and it is therefore unquestionably sufficient, irrespective of the allegations of force and violence. It would be good even if it did not show that the appellant was a conspirator, participating in the fraud, for it is well settled by our decisions, that, where a note is obtained by fraud, the holder can not recover upon it unless he shows that he bought it before maturity without notice, and that he paid value for it. Giberson v. Jolley, supra; New v. Walker, 108 Ind. 365; Eichelberger v. Old Nat’l Bank, 103 Ind. 401; Scotten v. Randolph, 96 Ind. 581; Mitchell v. Tomlinson, 91 Ind. 167; Coffing v. Hardy, 86 Ind. 369; Baldwin v. Barrows, 86 Ind. 351; Baldwin v. Fagan, 83 Ind. 447; Zook v. Simonson, 72 Ind. 83; Harbison v. State Bank, 28 Ind. 133 (92 Am. Dec. 308); Smith v. Popular, etc., Ass’n, 93 Pa. St. 19; Munroe v. Cooper, 5 Pick. 412.
The answer contains one paragraph, duly verified, denying the execution of the note, and, under this paragraph, it was competent to prove that the note was altered after it had been signed as well as that it was not delivered. The evidence that there was a material alteration of the note is strong and
The verified plea of non est factum stands as a complete defence, unaffected by the other answers, and the appellant can not avail himself of the statements in other answers as conclusive admissions. A denial is not neutralized by affirmative pleas.
We do not find it necessary to approve or condemn the decision in Stevens v. Burr, 61 Ind. 464, but we think it proper to say that some of the expressions there used are broader than the facts required, and that these expressions can not be regarded as authoritative. We are clear that the affidavit for a change of judge was not such as the statute requires, inasmuch as it does not state any one of the causes enumerated, but merely avers that the plaintiff “ believes that he can not have a fair and impartial trial before the regular judge of this court.”
Judgment affirmed.