Cottle v. Sanders , 1931 Tex. App. LEXIS 1267 ( 1931 )

WILLSON, C. J.

(after stating the case as above).

The legal effect of the failure (before it was executed and delivered) to express in the note a time for the payment thereof was to make it payable on demand. Section 7, art. 5932, R. S. 1925. The legal effect of the alteration accomplished by adding the words, “On or before October 1st,” was to change the due date of the note. Hence the alteration was a material one. Section 125, art. 5939, R. S. 1925. The legal effect of materially altering a negotiable instrument “without the assent of all parties liable thereon” is to avoid it, “except as against a party who has himself made, authorized or assented to the alteration, and subsequent indorsers.” Section 124, art. 5939, R. S. 1925. The note in question here having been altered in a material way after it was executed and delivered by appel-lees to appellant, it follows appellant was not entitled to recover thereon against makers thereof, if any, who did not consent to the alteration made. The jury found, in effect, that none of the makers except appellee Wade Sanders consented to the alteration. There being evidence to support the finding, except as to appellee L. M. Hunt, the judgment should be affirmed so far as it denied appellant a recovery of anything against appellees Barton, Anderson, and Underwood, unless there is merit in appellants’ contention that the effect of section 14, art. 5932, R. S. 1925, was to authorize him to alter the instrument as he did. Said section, so far as it is material to the contention, is as follows: “Where the [negotiable] instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein.” The contention is based on evidence showing that in making the note a printed form with blanks to be filled in_was used. It will be noted that the authority conferred by the statute to fill blanks was prima facie only — meaning, evidently, that the existence of such authority was rebuttable by evidence to the contrary.

We agree with appellant in the contention presented by his ninth assignment, that it was error not to render judgment in his fhvor against L. M. Hunt for the amount of the note, instead of for one-fourth of the amount thereof. The judgment will be reformed accordingly, and as reformed will be affirmed.