Young v. Baker

Roby, J. The appellee’s complaint was in three paragraphs, each of which was founded upon a promissory noto, identical, except as to the time of payment; the first of the series being of the tenor following: “$533.33. Crawfordsville, Ind., March 25, 1896. October 1, 1897, after date, we, or either of us, promise to pay to the order of Thompson S. Bland, payable at the First National Bank of Vincennes, Ind., $533.33, value received, without any. relief from valuation or appraisement laws, with interest at six per cent, per annum from date, payable annually until paid, and attorney’s fees. The drawers and indorsers severally waive presentment for payment, protest, and notice of protest and nonpayment of this note.” Each paragraph contained the averment that the payees, who were made defendants, indorsed said notes to the plaintiff before maturity, and for a valuable consideration. The appellants answered the complaint in two paragraphs. (1) Settingup that they did not execute the notes sued on, or either of them. This paragraph was verified and is sufficient as a plea of non esb factum. Swales v. Grubbs, 126 Ind. 106. (2) General denial. No reply was filed. The cause was submitted to the court for trial. A general finding was made for the plaintiff, and a judgment rendered against the ap> — 132 — pellant for $1,309.67, from which, this appeal is taken. Their motion for a new trial upon the ground, (1) that the finding is contrary to law, (2) that the finding is not supported by sufficient evidence, was overruled. Such action of the court is assigned for error. ' The evidence is in the record. It is not conflicting. The notes were admitted in evidence without proof of appellants’ signatures in the first instance, and without objection. The proof was supplied at a later time. Appellants were not harmed by the failure to make preliminary proof of signatures, the authenticity of which is admitted. It is shown by the uncontradicted evidence of the appellants that the words “The First National” and “Vincennes, Indiana” were not in the notes when they were signed, and that they did not authorize anyone to insert them thereafter. One appellant testified that he asked Gilligan, the agent selling the horse, “where the note was payable,”, and he said it would probably be sent to Vincennes; another appellant testified that he asked Gilligan where the notes were payable, and he said he supposed it would be at Bicknell. Appellant Sprinkle testified: “I asked where- the notes were to be payable, and he said ‘never mind Mr. Sprinkle; I will attend to that.’ ” Part of the appellants testified that they supposed they saw the word “bank” in the notes, and two of them testified that there was a blank space after the word “at” and before the word “bank,” and also a blank space after the word “bank.” Neither the extent of the space nor its appearance is mentioned. The other appellants have not at any time made any statement or request, given any direction, or had any information as to the notes being made payable at any place. There was no agreement that they were to be made payable at a bank. Appellee testified that he purchased the notes before maturity, paying for them a sum stated, that they were then in the same condition as at the time of the trial, and that he had no knowledge of any alteration. It is not shown whether there was or was not — 133 — anything on the face of the notes when he purchased them to suggest an alteration. The notes, when executed, were not payable at a bank in Indiana; they were payable generally ; and it was the duty of the makers to seek them and pay them when due to the holders. King v. Finch, 60 Ind. 420; Gale v. Corey, 112 Ind. 39. They were negotiable by statute. §§7515, 7516 Burns 1901, §§5501, 5502 Horner 1901. The assignee would have taken them subject to whatever defense or set-off the makers had, before notice of the assignment, against the original payee or assignor. §7517 Burns 1901, §5503 Horner 1901. The notes sued upon were payablé at a bank in this State, and negotiable by the law merchant; a bona fide purchaser before maturity without notice taking them free from equities between makers and payee. §7520 Burns 1901, §5506 Horner 1901. The alteration, making them payable in bank instead of generally, was therefore a material one. Pope v. Branch Co. Savings Bank, 23 Ind. App. 210; McCoy v. Lockwood, 71 Ind. 319; Ballard v. Franklin Life Ins. Co., 81 Ind. 239; Shanks v. Albert, 47 Ind. 461; Light v. Killinger, 16 Ind. App. 102, 59 Am. St. 313. The material and unauthorized alteration of a promissory note renders it invalid in the hands of the bona fide holder as well as in those of the payee. Wood v. Steele, 6 Wall. 80, 18 L. Ed. 725; Cronkhite v. Nebeker, 81 Ind. 319, 42 Am. Rep. 127; 2 Am. & Eng. Ency. of Law (2d ed.), p. 193; Deitz v. Harder, 72 Ind. 208; Bowman v. Mitchell, 79 Ind. 84; Collier v. Waugh, 64 Ind. 456; Hert v. Oehler, 80 Ind. 83; Citizens Bank v. Adams, 91 Ind. 280, 285. Appellee tendered an issue based upon notes payable at the Eirst National Bank of Vincennes, Indiana.' Bailing to establish the execution of such notes, and it being affirmatively shown that they were not executed by the appellants, the finding should have been against him. It is, however, claimed by him that the payee named in the notes had been authorized, as an agent of the makers, — 134 — to insert the name of the bank. In order to avoid confusion, and to determine the legal questions involved with clearness and accuracy, the proposition stated will be first considered as though it arose between the makers of the note and the payee, leaving the questions as to the right of the indorsee out of consideration at this time. The general proposition, to which there does not seem to be any dissent, is that a person who delivers a note for use with blanks unfilled, the filling of which is necessary to complete the instrument and render it operative, is thereby given implied authority to make such insertions as are necessary to form a complete and enforceable contract. Good Roads, etc., Co. v. Moore, 25 Ind. App. 479; Angle v. Northwestern, etc., Ins. Co., 92 U. S. 330, 23 L. Ed. 556 ; Gothrupt v. Williamson, 61 Ind. 599; Armstrong v. Harshman, 61 Ind. 52, 28 Am. Rep. 665; Holland v. Hatch, 11 Ind. 497, 71 Am. Dec. 363; Spitler v. James, 32 Ind. 202, 2 Am. Rep. 334; Emmons v. Meeker, 55 Ind. 321; Brown v. First Nat. Bank, 115 Ind. 572; De Pauw v. Bank, 126 Ind. 553, 10 L. R. A. 46. It is also equally well settled that the payee can not take from or add to a contract already complete in its terms any material condition, no matter how many blanks may have been left, contrary to the intention of the parties. Good Roads, etc., Co. v. Moore, supra; Angle v. Northwestern, etc., Ins. Co., supra; McCoy v. Lockwood, 71 Ind. 319 ; Pope v. Branch Co. Savings Bank, 23 Ind. App. 210; De Pauw v. Bank, supra. The notes as executed by appellants were complete. They contained the date, time of payment, amount, rate of interest, and were payable generally. It lacked nothing to make a complete and perfect contract. The mere fact that the form used was such that a different contract might have been made upon it could confer no implied authority upon the payee to act as the agent of the maker, and, thus acting, to create a different instrument more favorable to himself — 135 — than, the one actually signed. Casto v. Evinger, 17 Ind. App. 298, 300; Coburn v. Webb, 56 Ind. 96, 26 Am. Rep. 15; Palmer v. Poor, 121 Ind. 135, 6 L. R. A. 469; McCoy v. Lockwood, 71 Ind. 319; Burrows v. Klunk, 70 Md. 451, 17 Atl. 378, 3 L. R. A. 576, 14 Am. St. 371. In Marshall v. Drescher, 68 Ind. 359, the principal authority relied upon by appellee, the words “The First National Bank of Spencer, Indiana” were inserted after the printed word “at.” The action was brought by an innocent purchaser for value, who had no notice of the alteration. A judgment in his favor was affirmed, the reason therefor being stated by the court in the following language: “We think the finding shows that the note was valid in the hands of the payee, notwithstanding the alteration, and, being so valid, was valid in the hands of the appellee, whether he had notice of the alteration or not.” One finding of fact was that the maker of the note directed the payee at the time to leave it at the bank named. The opinion further states that “The payee had implied authority, from the condition of. the note, and from the statement of the maker to leave it ‘at the First National Bank of Spencer’ for payment, to fill up the blank in the note as he did.” The authorities cited relate to the right of a bona fide holder for value to recover upon notes negligently executed, except the ease of Gothrupt v. Williamson, 61 Ind. 599, where the question was between the payee and the maker; the note having been left blank as to amount, to whom payable, and where payable, and being therefore an incomplete instrument. The substance of the decision in Marshall v. Drescher, supra, is that the facts proved, as a matter of fact, establish the agency of the payee to make the insertion for the makers. The presence of a blank space was, in that case, as it is in the ease at bar, one circumstance proper and necessary to consider as between the parties to the instrument in determining whether the change made was or was not authorized. It is not the only fact to be considered — 136 — in this case, any more than it was in that one. There the maker himself selected and named the hank where he desired the note made payable, and the implication of authority made was drawn from the facts enumerated in the opinion. This is the construction given the case by both the Supreme and Appellate Courts. Pope v. Branch Co. Savings Bank, 23 Ind. App. 210, 215; Palmer v. Poor, 121 Ind. 135. In this case the authority of the payee to insert the name .of the bank is expressly denied, and no circumstances are shown from which it could be implied in the absence of such denial, except the mere fact that the person drawing up the note, whoever he may have been, omitted to draw his pen through the blank spaces therein, and the presence in the instrument of a clause waiving presentment and protest, — a clause not infrequently found in notes not payable in bank. As against these circumstances, and in addition to the testimony that no authority was given, is the fact that the payees were business men and stock dealers for a number of years; that the note in its original form left its makers, as all of the parties are presumed to have known, free to set up such equities as might exist between them and the payees, and that in its altered condition in the hands of a bona fide holder such defenses were cut off. If the parties intended the note to be made payable at the Eirst Rational Bank of Vincennes, it is extremely probable that the name of that bank would have been inserted at that time. What inference might have been permitted in the absence of direct testimony is not important, an inference not being admissible to establish a fact which is disproved by direct and unequivocal testimony. Authority can not be implied to do an act which was understood should not be done. Pope v. Branch Co. Savings Bank, supra. That the mere leaving of a blank in a complete promissory note does not authorize the payee to insert terms therein changing the character of the obligation, is a proposition abundantly established in this State. — 137 — Shanks v. Albert, 47 Ind. 461; Palmer v. Poor, supra; McCoy v. Lockwood, 71 Ind. 319; Schnewind v. Hacket, 54 Ind. 248; National Bank v. Zeims, 93 Iowa 140, 146, 61 N. W. 483. In Palmer v. Poor, 121 Ind. 135, a note payable in bank, in tbe hands of a third party, was held to have been vitiated by tbe insertion of tbe figure eight before tbe words “per cent, interest.” If tbe presence of blanks were of controlling importance, it might as well have been held in that ease that tbe payee was authorized to insert a legal rate of interest therein, as to bold that tbe entire character of this note might be altered by tbe insertion of tbe name of a bank, merely because there was room in tbe instrument, as signed, in which to malee such addition. Cronkhite v. Nebeker, 81 Ind. 319, 42 Am. Rep. 127; Holmes v. Trumper, 22 Mich. 427, 7 Am. Rep. 661; Collier v. Waugh, 64 Ind. 456; Hert v. Oehler, 80 Ind. 83; Eckert v. Louis, 84 Ind. 99. In Gillaspie v. Kelley, 41 Ind. 158, 13 Am. Rep. 318,— a case not cited by appellee, — a blank was left after tbe words “payable at,” and before tbe words “bank at Frankfort,” in which tbe name of a certain bank was inserted. Tbe court there held it to be obvious, “not only from tbe face of tbe note, but from tbe evidence of tbe appellee, that tbe maker of tbe note in question intended to make tbe same negotiable and governed by tbe law merchant.” What tbe evidence of tbe appellee was is not stated, but tbe note as signed contained tbe words “bank at Frankfort,” tending to indicate an intention which does not appear in tbe ease at bar. Tbe court further.said: “If tbe parties bad intended to make an ordinary promissory note, and it bad been complete as such when it was delivered to tbe payee, such payee would not have been authorized to insert words rendering it negotiable.” In Cronkhite v. Nebeker, supra, tbe authorities were reviewed and distinguished. Tbe case of Holmes v. Trum — 138 — per, supra, was liberally quoted from and approved. The opinion by Woods, J., contained the following concise statement of the proposition decided: “The exact question presented in this record is, whether the maker of a nonnegotiable promissory note, perfect in its terms, by leaving a blank space in the body of the note wherein words of negotiability may be so inserted as not to furnish an indication of the alteration having been made irregularly, gives an implied authority for the making of the alteration, which, as against a bona 'fide purchaser, he may not deny.” The following extract from Holmes v. Trumper, 22 Mich. 427, was made: “We think the courts have gone quite far enough in sustaining instruments executed in blank, and the implied authority to fill them up, and we are not disposed to take a step in advance in that direction.” See, also, Citizens Bank v. Williams, 174 Pa. St. 66, 34 Atl. 303, 35 L. R. A. 464. The holding was that the authority to insert the name of a bank did not exist. The court further said: “There are cases in actual, and in seeming, conflict with the foregoing; but they are, in most instances, cases where the notes, as executed, were imperfect, the unfilled blanks being in such connection with the words used as to require the insertion of other words in order to complete the instrument as'executed.” If there is anything said in Marshall v. Drescher, 68 Ind. 359, inconsistent with the proposition decided in Cronkhite v. Nebeker, 81 Ind. 319, it is overruled by the later exposition of the law. Assuming, without further discussion, that, as between the parties to the instrument, no authority to fill the blanks is shown, but that, indeed, such authority is negatived, the next logical step is to inquire what effect the indorsement of the note to the appellee is to be given. The allegation of the complaint was: “That afterwards, before the maturity of said note, and for a valuable consideration, the said Alexander Thompson and William P. Bland, by the style of — 139 — Thompson & Bland, assigned said note to this plaintiff, by an indorsement thereon in writing.” The complaint does not aver that the appellee had no notice of the alteration, and the allegation made is not equivalent thereto. Bunting v. Mick, 5 Ind App. 289, 293; Gilberson v. Jolley, 120 Ind. 301; Pope v. Branch, Co. Savings Bank, 23 Ind. App. 210; Bradley v. Wicker, 23 Ind. App. 380. The appellee not having averred that he was a good-faith purchaser without notice, is attempting to sustain himself upon an issue not made. This he can not do, and the judgment will have to be reversed. It is not, therefore, necessary, nor, indeed, proper to discuss or attempt to decide questions which relate to the facts upon which appellee might be entitled to recover notwithstanding the alteration. Attention is called to the following cases: Brickley v. Edwards, 131 Ind. 3, 6; Emerson v. Opp, 9 Ind. App. 581; Baldwin v. Bricker, 86 Ind. 221. Bank v. Morgan, 117 U. S. 96, 6 Sup. Ct. 657, 29 L. Ed. 811. Judgment reversed, with instructions to sustain appellants’ motion for a new trial, for further proceedings, with leave to reform issues if desired.