Bond v. Cole

Opinion bt

Orladt, J.,

The plaintiff entered judgment on a note dated twelve years prior thereto, and issued an execution thereon, when W. W. Cole, one of the defendants, promptly presented his petition to the court below and obtained a rule to show cause why the judgment should not be opened.

After a full hearing on petition, answer and proof, the judgment was opened. No exception was taken to this action of the court and the case was tried before a jury, the defense urged to it being that there had been a material alteration made in the body of the note after it was signed and delivered. The consideration of the note was in part payment for a horse that was bought for stock purposes, and which was guaranteed by a writing of the owner “to be a sound horse for stock purposes.” This written guarantee was not produced, but the defendant explained its loss in having been destroyed in a fire of his father’s store, where all of his papers had been kept, and the failure to produce it and the attendant explanation were submitted to the jury, This guarantee totally failed, as the horse was thoroughly worthless for all purposes; the alleged alterations were in the following words written into the body of the note, “as part payment on a horse that was not guaranteed.” This declaration was in direct conflict with the testimony of the makers as well as the admitted purpose for which the horse was bought.

During the argument to the jury the counsel of plaintiff was not permitted to comment on a part of the testimony of one of plaintiff’s witnesses in relation to a letter which had been given to the witness by the plaintiff and alleged to have been written by one of the defendants. The existence of the letter was developed on cross-examination of the witness for the purposes of showing where it was at the time of the trial. It was not offered in evidence and its contents were not shown; it further appeared that it had been delivered to the counsel of the plaintiff. If he wanted to use it for any purpose he could have had it properly presented in evidence, when it would have been a subject for comment by either side, and the court rightly restricted the argument to the facts in proof before the 3W-

The third assignment of error is not considered for the reason- that it does not represent the whole of the court’s expression on the subject. It stops at a semicolon, and when read with the balance of the sentence is free from error.

The fourth assignment is open to the same objection, and the quotation in the argument of appellant of a part of sec. 124, of the negotiable instruments act of May 16, 1901, P. L. 194, while purporting to be complete, is but one of several sections relating to the same subject, and sec. 125, provides that any change or addition which alters the effect of the instrument in any respect, is along with several other suggested matters, a material alteration.

If the words complained of in this case were placed on the note after execution and delivery, it is manifest that they contradicted the alleged guarantee and if found to be so, they entirely destroyed the consideration of the note. The verdict did not depend upon the testimony of one witness, but of both makers of the note, the interlineation of material words, as well as the unusual length of time the plaintiff held it without demand for payment. Each one of the defenses was vital to the plaintiff’s case, and the disputed facts were fully and clearly submitted to the jury in a fair and adequate charge.

The judgment is affirmed.