Hoffman v. Molloy

SMITH, P. J. — This is an action in replevin to recover a piano. Plaintiff had judgment and defendant appealed. The defendant, it appears, gave the plaintiff a number of promissory notes for the purchase price of the piano which he secured by a chattel mortgage thereon. After payment of several of the first of the notes falling due he made default in the payment of the last thirteen of them. The plaintiff brought this action to recover the piano so that he could subject it to sale under the mortgage for the payment of unpaid overdue notes. The defense seems to have been that all of the notes except one had been altered after delivery by plaintiff by inserting thereon the word “date,” so as to make them bear interest from date. The mortgage, which was given after the notes, recited the fact that the notes therein referred to drew interest from date. The mortgage is in no way called in question, and without the production of the notes in evidence it was evidence of the debt in the absence of fraud sufficient to support the plaintiff’s action. There was no pretense that the mortgage debt had been satisfied. Besides this, it is not claimed that one of these notes was in any way altered. This being unpaid was sufficient of itself to support the plaintiff’s claim if there was nothing else. The evidence as to whether or not there was an alteration of the notes or if so whether or not [369] tbe same was not made by tbe consent and acquiescence of defendant, is quite conflicting. But however tbis was, tbe recitals in tbe mortgage, wbicb latter was unassailed, afforded all tbe evidence required to make out tbe plaintiff’s case. Baskin v. Wayne, 62 Mo. App. 515. Tbe defendant complains of the action of tbe court in giving for plaintiff and refusing for him certain instructions, but tbe action of tbe court in that regard is not subject to review by us because it does not appear from tbe defendant’s abstract that any exceptions were taken; or if so, preserved to such action. Any way, from aught that appears from tbe record, tbe judgment was clearly for the right party and must be affirmed. All concur.