Bank of Flat River v. Walton

ALLEN, J.

This is an action to recover a balance of $440 claimed to be dne plaintiff upon the purchase price of a house and lot. Plaintiff alleges that the property was sold defendants for the agreed price of $450; that defendants paid plaintiff $10 thereon, leaving the said balance of $440 due plaintiff.

Defendants’ answer sets up that the purchase price of the property was $350, that they made a cash payment of $10 and executed a note for $350, and paid plaintiff certain interest charges in advance and a recording fee for recording a deed of trust securing the note. And it is averred that the note was altered after-wards by plaintiff, without the knowledge and consent of defendants, whereby the amount thereof was changed from $340 to $440..

The trial before the court and a jury resulted in a verdict and judgment for plaintiff for the sum of $387.85, and the defendants appealed.

The evidence shows that plaintiff bank had for sale certain small houses, which had been placed in the hands of a firm of real estate brokers, consisting of one R. G. Ramsey and his son S. H. Ramsey; and that the house here in question was sold to defendants, husband and wife, by such brokers. There is a conflict in the testimony as to what was the purchase price of the house orally agreed to be paid by defendants. The evidence in behalf of plaintiff is to the effect that the agreed purchase price was $450, $10' to be paid in cash, and a note to be given for the remaining $440 secured by a deed of trust upon the property, but that one of the brokers, S. H. Ramsey, who consummated the transaction with defendants, by mistake had defendants sign a note for $340 instead of for $440. It is said that this mistake occurred by reason of the fact that the brokers had for sale another house belonging to plaintiff, near the one sold to defendants, which they were authorized to- sell for $350; and that inadvert *626 •ently the wrong note was used in consummating the sale. The deed of trust was never recorded, and it appears that it was lost. There was testimony, however, that a copy of the note, for $340, was pasted in the deed of trust, but that in the latter the purchase price was referred to as being $450.

The evidence is that when S. H. Ramsey brought 'these papers to the bank and delivered them to the cashier, the latter called his attention to the mistake, and that thereupon he took the papers and started to change the note, and did change the figures thereof from $340 to $440; that the cashier at once interfered, preventing further alteration in the paper without the consent of the makers. It appears that the agent then undertook, without success, to get defendants’ consent to have the amount of the note changed to conform to what was claimed to have been the real transaction.

Defendant B. Walton testified that the property was sold for $350, and that he and his wife signed a note for $340, and that any change therein was wholly unauthorized. And he and other witnesses testified that he offered to make payments to plaintiff in accordance with what he claimed to have been the real transaction..

The sale was made March 1, 1909, and the property conveyed to defendants; and the note of that date, was by its terms due and payable ninety days thereafter. Defendants promptly entered into possession •of the property, and have since retained possession thereof. The suit proceeds for the recovery of the ■original consideration unpaid, apart from the note itself ; and the latter was duly tendered into court for cancellation.

The theory pursued by defendants, appellants here, is that the alteration in the note, without their authority or consent, prevents any recovery whatsoever by plaintiff in this action. But a reading of the record has convinced us that there is no merit in this contention. At the outset it may be said that the change made *627 in the face of the paper will not prevent a recovery of the original consideration, unless it is found that it was made with fraudulent intent. [See Harvesting Co. v. Blair, 146 Mo. App. 374 , 124 S. W. 49 ; Marth v. Wiskerchen, 186 Mo. App. 515 .] It does not appear that it could here well he said that the change in the paper was prima facie fraudulent, for it seems that the body of the instrument was never changed, and that the only alteration was in the figures. [See Sec. 9988, Rev. Stat. 1909.] But in any event the evidence was overwhelming that the figures in question were not changed with any fraudulent intent, and this matter was submitted to the jury, whose verdict must be held to be conclusive thereupon.

But aside from this it appears the change that was made in the paper was not such as to constitute an alteration, in the proper sense of that word, but rather a spoliation thereof by a stranger to the paper. It is true that' S. H. Ramsey and his father, as real estate brokers, were authorized by plaintiff to sell the property for $450, and to accept a note and deed of trust securing the unpaid portion of the purchase price; but it clearly appears that it was not within the scope of their employment or authority to make the change in the paper which S. H. Ramsey made in the presence of the cashier of plaintiff bank. Touching this matter all of the evidence is that the papers were delivered to the cashier by S. H. Ramsey, after the latter had consummated the sale and wholly completed his undertaking as plaintiff’s agent; that upon inspecting the papers the cashier called Ramsey’s attention to the mistake of $100 in the note, whereupon Ramsey took up the papers and, before he could be prevented from so doing, changed the figure “3” to “4”, making the amount of the note, as shown by the figures, $440 instead of $340. And it is said that the cashier at once interfered and prevented any further change in the note, or in the duplicate thereof .contained in the *628 deed of trust. Under such, circumstances plaintiff cannot be held bound by Ramsey’s unauthorized act, unless by subsequent ratification thereof. [See Hays et al. v. Odom, 79 Mo. App. 425 ; Lubbering v. Kohlbrecher, 22 Mo. 596 ; 2 Cyc. 155.] And it does not appear that plaintiff did anything which could constitute a ratification of such unauthorized 'act. Plaintiff refrained from recording the deed of trust, and has not sought to enforce the note which it duly tendered into court for cancellation.

Other points made are not controlling and need not be discussed. The verdict of the jury appears to be for $340 with accrued interest thereon, whereby defendants are required to pay’ only the amount which they claim to have agreed to pay for the property. Under the circumstances we think that defendants have no just ground to complain of the verdict.

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.