Port Huron Engine & Thresher Co. v. Sherman

Citations

• 14 S.D. 461
• 85 N.W. 1008
• 1901 S.D. LEXIS 46

Syllabus

<p>1. Comp. Laws, § 3595, provides that the intentional destruction, cancellation, or material alteration of a written contract by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contract in his favor against parties who do not consent to the act. A clerk of plaintiff corporation inserted in a note executed by defendant the name of a certain bank as the place of payment, merely as a memorandum, to which it was to be sent for collection. The clerk’s duty was to keep a record of plaintiff’s notes, but she had no authority to bind the corporation, and no officer authorized to make a binding alteration had any knowledge of the insertion. Held, that the insertion did not avoid the note, since it was a mere spoilation by a stranger, and not an alteration.</p> <p>2. A clerk in plaintiff’s office inserted in a note executed by defendant the name of a certain bank as place of payment, and plaintiff had no knowledge of the change until after the note was forwarded for collection, and a suit was instituted on it. Held, that the evidence was not ' sufficient to show that plaintiff ratified the action of the clerk, hence the insertion did not avoid the note.</p> <p>3. Plaintiff’s clerk testified that she inserted the name of a bank in a note executed by defendant merely as a memorandum as to where the note was to be sent for collection, and that plaintiff had no knowledge of the alteration, and her testimony was not impeached or contradicted. Defendant resisted payment on the ground that the note was rendered void by the alteration. Held, that the contention that it was erroneous to direct a verdict for plaintiff, because the jury might have found that' the alteration was made with plaintiff’s consent, could not be sustained, since the clerk had no interest in testifying falsely, and the jury would not have been justified in disregarding her unimpeached testimony.</p>