Scotland County National Bank v. O'Connel

Rombaiter, J., delivered the opinion of the court. The plaintiff brought its action upou a promissory note, charged to have been executed by the defendants,, jointly with one T. S. Smith. The defendants answered under oath, denying the execution of the note. The evidence tended to prove the following facts.: That T. S. Smith made a negotiable promissory note to the order of the Scotland County National Bank for one hundred dollars, and obtained the signatures of the defendants thereto as joint makers, and that thereafter and prior to the delivery of the note to the bank, he altered the note by adding after the words “one hundred,” the [167] words “thirty-five” Also, that the entire written part of the note is in the handwriting of Smith, who had left Sufficient blank space after the words one hundred to insert the vrords thirty-five ; that these last words were inserted in the saíne handwriting, with the same ink, and in a manner to avoid detection of the alteration; that there was nothing in his transaction with the bank to arouse suspicion of its agents, and that the bank purchased the note in good faith before maturity, for a full and valuable consideration. These being the substantial facts, the court, upon the plaintiff’s request, charged the jury as follows: “Although the jury may believe, from the evidence, that the note was altered by adding the words thirty-five, after the defendants’ signatures were attached to it (if the jury believe, from the evidence, that the defendants signed it), then in such case the jury will find for the plaintiff; if they shall believe, from the evidence, that J. W. Barnes, cashier of plaintiff, bought and received said note, and that at the time said note was so bought and received, there was no marks upon the face of said note such as would arouse suspicion upon the part of a careful man upon inspection thereof, and that said cashier bought and received same in good faith and believing it tobe genuine.” Under this instruction the jury returned a verdict for the plaintiff for the full amount of the note and interest. We have no hesitation to say that this instruction is erroneous. As applicable, to the facts of the case, it omits several important qualifications. If the law were as therein stated, parties to commercial paper would be at the mercy of any skillful forger, and might have their liability increased a thousand fold, without any negligence on their own part, provided the alteration of the sum to be paid was executed with sufficient skill to mislead careful men. We conceive that the general rule on this point in this state is now, as it always was, that the [168] holder of even á negotiable” note or bill,'which has been, altered by raising its amount, without the consent of the party to be charged, can not recover against such party, whatever the good faith of such holder may have been in acquiring the paper. But we do not consider this error, under the peculiar facts of this case, to have worked such prejudice to the defendants as to demand a reversal of the judgment: The original of the note sued on is preserved in the record before us, and its inspection conclusively corroborates the testimony offered by the plaintiff, and establishes beyond controversy that the defendants executed and delivered a note to Smith, the body of which was in Smith’s handwriting, in a condition which enabled him to add the words thirty-five to the written part of the sum and the figures $135.00 at the head of the note in the space usually reserved for that purpose, before delivering the note, and to do so in a manner to baffle detection. That the signatures are those of the defendants, and that the bank took the paper in good faith and for value, are facts found by the jury. The obvious, admitted, and found facts present a case, where negotiable paper is delivered by part of the makers to their co-maker, for whose benefit it is executed, in such a condition as to enable him to fill blank spaces, without in any manner' changing the appearance of the note as a genuine instrument. This, under the rule announced in Iron Mountain Banlc v. Murdock (63 Mo. 70), will warrant a recovery on the part of the holder in good faith for value, notwithstanding the alteration.' To a case of this kind the doctrine is fairly applicable that “he who by his carelessness or undue confidence has enabled another to obtain the money of an innocent person shall answer the loss.” Chapman v. Rose, 56 N. Y. 137. Of course, no general rule can be laid down which will be applicable to cases of this character without exception. But, taking the peculiar facts of this case intó [169] consideration, it appears to be one wherein the judgment should be affirmed on the ground that it is for the right party, notwithstanding apparent errors in the trial of the cause. All the judges concurring, it will be so affirmed.