BAILEY v. CITIZENS BANK OF MEEKER

BAILEY v. CITIZENS BANK OF MEEKER
1926 OK 299
247 P. 42
118 Okla. 118
Case Number: 16478
Decided: 04/06/1926
Supreme Court of Oklahoma

BAILEY
v.
CITIZENS BANK OF MEEKER.

Syllabus

¶0 1. Bills and Notes--Liability of Maker on Altered Instrument in Hands of Holder in Due Course. A negotiable instrument, which has been materially altered, in the hands of a holder in due course not a party to the alteration is enforceable against the maker only according to its original tenor.
2. Same--Erroneous Instruction. An instruction, that the holder in due course of a negotiable instrument which has been materially altered without the knowledge of such holder may recover upon said altered instrument and enforce it in its condition, is erroneous.
3. Appeal and Error--Reversal--Inconsistent Instructions. Instructions must be considered as a whole, and where two instructions are given containing inconsistent and conflicting propositions tending to confuse the jury, the case will be reversed for the reason that this court is unable to determine which instruction the jury followed.

Saunders & Emerick, for plaintiff in error.
A. M. Baldwin and F. H. Reily, for defendant in error.

DICKSON, C.

¶1 The parties will be referred to as plaintiff and defendant as they were designated in the court below, inverse to the order in which they here appear. On the 1st day of December, 1923, the plaintiff commenced this action in the superior court of Pottawatomie county to recover a judgment upon a promissory note. The plaintiff alleged in its petition that on the 26th day of January, 1921, the defendant, W. E. Bailey, and one J. R. Anderson, for value, executed and delivered to one E. A. Martin their negotiable promissory note, whereby they promised to pay to the said E. A. Martin, or order, $ 250 on or before the first day of December, 1923, with interest at ten per cent. per annum from January 1, 1923; that prior to the maturity of said note the said E. A. Martin sold and assigned the same to the plaintiff. The plaintiff prayed judgment for $ 250 principal, $ 23 interest, and $ 27.50 for attorneys' fees. The defendant by his answer admitted the execution and delivery of the promissory note sued upon, but alleged that since the delivery to the original payee the same had been materially altered, without the consent of the defendant, in this: That said note as originally drawn provided for interest at the rate of ten per cent. from the maturity of said note; and alleged, in effect, that the word "maturity" had been erased and the date "January 1, 1923" had been inserted therein. The defendant further alleged that prior to the maturity of said note, he tendered to the plaintiff the sum of $ 250, and demanded that said note be canceled. The defendant prayed that the plaintiff take judgment for $ 250 and no more, and that the defendant be discharged with his costs herein expended.

¶2 The affirmative allegations of the answer were put in issue by the plaintiff's reply. It was admitted upon the trial, that prior to the maturity of said note the defendant tendered to the plaintiff the sum of $ 250, being the face of said note. The evidence on the issue as to the alteration of said note was sharply conflicting, and it is conceded was sufficient to take the case to the jury. Over the objection and exception of the defendant, the court gave to the jury its instruction No. 4 as follows:

"You are therefore instructed in this case that if you believe by a preponderance of the evidence that the said note was altered after delivery to the payee, and further believe by a preponderance of the evidence that the plaintiff bought said note in due course of business, before maturity, and without actual knowledge or notice of such alteration, or that such alteration, if any, was not such as to put the buyer of said note, in the exercise of ordinary care and prudence, on notice that there might be such alteration, then your verdict must be for the plaintiff for the face of the note plus the interest, to wit: $ 273."