Fraker v. CulLum

The opinion of the court was delivered by Valentine, J.: The principal question involyed in this case is with reference to the effect to be given to certain alterations made in a certain promissory note. The facts of the case seem to be substantially as follows: In January, 1875, W. C. Fraker executed to J. C. Fraker a certain promissory note for $4,862.40, dated January 23, 1875, due in six months after date, and drawing interest from maturity at the rate of twelve per cent, per annum. This note was executed by W. C. Fraker without any consideration to him, and merely as an accommodation to his brother J. C. Fraker, who expected to have the note discounted by the First National Bank of Wichita. Afterward the note was so discounted. J. C. Fraker was the president and managing officer of said bank. While said note was in the hands of the bank, J. C. Fraker (its president and managing officer) altered the same by changing the figure “5,” in the figures “1875,” to the figure “6,” and by changing the word “maturity” to the word “date,” so that the note appeared to have been executed in 1876 instead of in 1875, and to draw interest from date instead of from maturity. This was done without the knowledge or consent of W. C. Fraker. August 29, 1876, said bank suspended. At that time the bank owed W. C. Fraker about $1,800, and, although the bank still held said note, W. C. Fraker did not know it. On the night of August 29, 1876, J. C. Fraker informed his brother W. C. Fraker that the bank still held said note; that it was not paid, and that he, W. C. Fraker, was still liable thereon- and requested W. C. Fraker to relinquish to the bank said $1,800 in part payment of said note, and to give new notes for the balance. W.- C. Fraker complied with his brother’s request. The new notes (four in number) tvere executed by W. C. Eraker to J. C. Fraker, and indorsed by J. C. Fraker and delivered to the bank. At the same time that these new notes were executed, the old note was delivered up to W- C. Fraker. No other consideration than this old note was ever received for the new notes, W. C. Fraker did not examine the old note at the time he received it, and did not know then, nor for several days thereafter, that said old note had been altered. Afterward, said bank was placed in the hands of a receiver, and the receiver then commenced this action against W. C. Fraker, and his brother J. C., to recover the amount of one of said new notes. W. C. Fraker defended — setting up, among other things, a want of consideration, and that said old note had been altered. The case was tried before the court and a jury. Evidence was introduced proving or tending to prove all the foregoing facts. When the defendant rested, the plaintiff demurred to the defendant’s evidence, on the ground that it did not prove any'defense. The court sustained the demurrer, the defendant excepting, and then rendered judgment against the defendant for the amount of the note sued on. The defendant then moved the court for a new trial, which motion the court overruled, and the defendant then, as plaintiff in error, brought the case to this court for review. We think the court below erred. We decide the case upon the facts as they now appear, and not upon what they may be shown to be upon a new trial. We refrain from discussing this case at length, for the reason that we suspect that many new facts will be shown on the new trial, and the case will then be presented in a very different aspect. All that we now decide is as follows: Where a note is executed by an accommodation maker, and is afterward, without his consent or knowledge, materially altered by an indorsee and holder thereof, such note is thereby rendered invalid; and afterward, where such maker, without having any knowledge of such alteration, executes new notes in lieu of the altered one, such new notes are given without any sufficient consideration therefor, and,.except in the hands of an innocent holder, for value, their payment cannot be enforced as against the maker. The judgment of the court below will be reversed, and cause remanded for a new trial. All the Justices concurring.