Perkins Windmill & Ax Co. v. Tillman

55 Neb. 652 | Neb. | 1898

Irvine, C.

This was an action by tbe plaintiff in error against tbe defendant in error on a promissory note for $45. The answer was a general denial. Tlxe ease was tried to the court without a jury, and by special findings the case was determined in favor of the defendant. The facts as established by the proof and found by the court Avere that the defendant had purchased a Avindnxill from an agent of the plaintiff and had given in part payment his note for $25. This note avíds afterwards altered, presumably by the agent, so as to make its amount $45, and was transmitted in its altered condition to the plaintiff.

The plaintiff contends, and correctly, as held by several decisions of this court, that a change made in a written instrument by a stranger is a mere spoliation, and that a recovery can still be had according to its original terms. It is next argued, and here there is room for doubt, that an agent to sell, receive notes in payment, and transmit them to his principal, is, for the purposes of the rule stated, a stranger, unless he had authority to make the alteration or his act in so doing has been ratified. We need not decide that question, because it was shown clearly that the alteration had been made and the petition was upon the note as altered. The denial put the execution of such a note in issue, and the proof sustained the denial. The amount of the note is descriptive thereof, and under a description of a note for $45 recovery could not be had on one for $25. If the plaintiff desired to recover upon the. note as made he should have so described it.

Five days after the trial application was made for leave to amend by alleging the note as made. The application was denied and that ruling is assigned as error. Leave to amend was properly refused. The evidence shows that the note was sent to a local bank for collection. It Avas returned and bears upon its back the words: “Says this amt. is incorrect.” Defendant also wrote plaintiff as follows: “I have the money that I owe you, but I will not pay that $45 note for I never gave it. P. S. Send this note that I gave you to Valparaiso Bank and I will cash it, at once.” The plaintiff asserts that this was a mere charge that defendant bad not signed the note and did not put it on inquiry as to the alteration. We thinlc otherwise. He had asserted that the amount was incorrect and then wrote that he never gave the $45 note. He added sufficient to sho w that he had made some other note which he was willing to pay. This certainly charged the plaintiff with notice that there had been a forgery committed. Notwithstanding such notice, it sued on the forged instrument before a justice of the peace, and on appeal again asserted the validity of the altered instrument. It never .admitted that the instrument was not in its original condition until after the trial,' when it found itself defeated in its attempt to enforce it as altered. These facts sustained the special finding that the plaintiff ratified the agent’s acts by suing after notice of the change and alteration. Even if the plaintiff might be permitted to amend on appeal by counting on an essentially different instrument than that sued upon before the justice, there was no error in refusing leave to amend after ratification had transformed what had possibly been only a spoliation into an alteration.

AFFIRMED.