| La. | Sep 15, 1847
The judgment of the court was pronounced by
The defendant Josias Chambers is sued .as endorser -of a promissory note made by Breioer, to the order of, and endorsed by, Ralph Smith, by Chambers, and by Spurlock. The defendant pleaded the general issue ; and also that, since he endorsed, a material change has been made in the instrument apparent on its face, and that such alteration has destroyed his liability. The defendant asked for a trial by jury, -which was refused. The -case was tried by the court, judgment .was given for the plaintiffs, and the defendant Chambers has appealed.
The note has been brought up in original for our inspection. It.is,in these words:
“$1500. Alexandria, October 31, 1840.
“Twelve months after date I promise to .pay to the order of Ralph Smith, the sum of fifteen hundred dollars, for value received, payable and negotiable at the office of discount and deposit of the .Union Bank of Louisiana, -at Avoyelles F. W. Brewer.
“ Credit the drawer. Endorsed, R. Smith.
“ J. C. Josias Chambers.
“ J. D. S. James D. Spurlock,”
In the body of the note between the words “ of” and “hundred dollars,” the word “ fifteen” is written on a grossly palpable erasure. The surface of the
Three cashiers of banks have been examined, who all state that they would not have discounted .a note having such an appearance. They concur as to the evident alteration of the note. The purport of their testimony as to the handwriting is, that the whole body of the note, except the month and day of the month, is in the hand-writing of Breiucv, also the words “ credit the drawer” at the foot of the note; and that tho endorsements are genuine. One of these witnessess states that he believes the initials under the word “credit the drawer,” to be in the proper hand-writing of the endorsers. It was admitted by the plaintiffs that the words “ October 31” were written by Coco, the then cashier of the Union Bank, at its branch at Avoyelles. This cashier was examined by the plaintiffs under commission. He states that the note was discounted for the credit of Brewer, and in renewal of a note of the same amount given the year .previous with tho same endorsers, with the exception of Smith, who was not a party to the former note; that the proceeds of the discount were placed to the credit of Brewer; that there has been no erasure or obliteration in any part of the note since it came into the bank’s possession ; that if any alteration was made, it was done before its being discounted, and that it has remained in tho bank’s possession ever since the discount. It is to be observed that the plaintiffs’ interrogatories to their own agent, and his answers, are entirely silent as to any direct communication of himself with Chambers, at the time of the discount. In the absence of any statement by the cashier .upon this subject, and looking to the face of the note and the nature of the transaction, the inference is reasonable .that the note was not brought for discount by the endorsers, or any of them' — at all events, not by Chambers, the second endorser ; and -that Brewer, for whose account it was discounted, and to whose credit the proceeds wont, brought the note to the cashier in the condition which it now presents. It is also in evidence that Brewer has left this State and is living in Texas, under the name of Paschal.
Jn our opinion the court below erred in giving judgment against Chambers. The alteration in a substantial .part, which is grossly patent on the face of the instrument, detracts from its credit and renders it suspicious; and this suspicion the plaintiffs., claiming underit against an accommodation endorser,, who is not shown to have delivered it to the bank, were bound to remove. In such a case, it .is for the holder to prove, and not for the defendant to disprove, that it was altered under circumstances which will make it still available. The bank has failed .to do so. It has failed to interrogate its cashier as to who brought the note for discount, and that agent has been silent on .this point, leaving uncontradicted the reasonable inference that it was placed in the cashier’s hands by the maker. It is also a suspicious circumstance that the bank should hav'e slumbered on its claim for four years, before bringing this action. We think this a proper case for the application of the principal recognised in McMicken v. Beauchamp, 2 La. 291. See also Greenleaf on Evidence, § 564. Chitty on Bills [*212], and the cases there cited.
The judgment of the court below is therefore reversed,-'and judgment is given for the defendant Chambers, with costs in both courts.
Eustis, C. J., did not sit, having an intorest with tho plaintiffs.