The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1896-03-26
IMPORTANT OPINIONS HANDED
DOWN IN THE SUPREME
COURT
SET IN THE TWENTY-S|XTH COURT.
All are for Jury Trial and Will be Called
Promptly on Dates Set-A Big Dam
age Case on Trial Before Judge
Frank Morris.
(FrOm Tucsdoy's Daily !

Reversed and Rendercd-Otto ct al. VS..
Half ct al, from Bexar.
Certified Questions Answered-Farm,
ers' and Merchants National bank VS..
Noyich ct al, from McLennan.
Waggener ct al. VS.. Has
kell ct al, from Dallas.
Writ of Error Granted-Edwards coun-
ty vs.. Jennings, from Edwards.
Following is the opinions delivered by
the supreme court yesterday:
Louis Otto ct al. VS.. NJ. Half IL Bros;
suit to cancel a promissory note and to
enjoin the negotiation of certain other
notes given as collateral security for the
first mentioned note, from BeXar county,
Fourth district. Reversed and rendered.
On December Is, 1893, l.. Otto was in
debted to NJ. Half q Bro. on an open ac-
count in the sum Of $2G35. On that date
Half IL Bro. agreed with j. A. Otto, who
represents l.. Otto, on terms of settle
ment. BY the terms of this agreement
Otto was to give his note, with interest
from date, for the amount due, and also
was to deposit with Half d Bro. four
other notes for the sum Of S5134O each
as collateral security for the payment
of the main note. These collateral notes
were signed by NJ. and Il. j. Ellis. The
main note when drawn provided for in
terest from maturity instead of from date.
When Half & Bro discovered this mis-
take they, without the consent of Otto,
altered the note so as to make it con-
form to the original intention of the par
ties.
This suit was commenced by Louis and
j. A. Otto against Half d Bro to enjoin
nT In nnIl IN. sal
notes and to cancel the main note. Half
IL Bro. filed a plea in the nature of II
cross-bil il setting up the original account,
confessing the change made in the note,
and asking judgment upon the original
Indebtedness, less the credits thereon
First-This court can not correct the
error. of the court of civil appeals, if err
ror there was, in refusing to find addi-
tional facts as requested by appellant,
upon writ of error.
Second-The finding of the court of
civil appeals that the alteration in the
note was made without any fraudulent in
tent, was one of fact and can not be re-
viewed by this court.
Third-The alteration of the note was
material, and its effect was to render the
note invalid for any purpose.
Did the giving of the note operate to
satisfy the prc-eXisting debt? The rule
is established by the great weight of
American and English authority that
where debt exists and n note is given
therefor by the debtor, the right of ac-
ton is suspended upon the original con
sideration until the note becomes due.
and if it is unpaid at that time the credit
ors may elect to sue upon the original
indebtedness or upon the note, unless the
note was accepted ms payment of the pre-
existing debt. Nothing in the evidence
shows that there was any agreement or
understanding that the note given by l..
and j. A. Otto should be accepted as pay
ment of the original account. The ac-
count, therefore, was not discharged or
satisfied by the execution of the note, but
the right OF action on the account was
suspended until the maturity of the note.
The maker of the note having set up its
lnvalldity and sought to cancel it, Half A.
Bro. mad the right to recover upon the
original consideration, unless they are de-
prived of that right by the making of
the alteration.
tourth-"When an instrument has been
materially altered it can not be sued upon
IN its altered form nor read in evidence
10 support an action even when brought
by n bona fidc holder without notice: but
when the party making the alteration
discharges the burden of proof upon him
was made by mistake and without fraud
ulent intent, the right of action upon the
consideration for which il was given re-
mains. Daniel on Neg. ms, vol. ., p.
1413) =
1t is urged that public policy demands
that the rigid rule of forfeiture of debt.
though there be no fraud intended in max
ing the change in the instrument. shall
be adopted in this State, because, il is
N m of L.,
name and just rule would open the door
to fraud and perjury. The same obicc-
ton may be urged to every rule of law
which permits parties to show mistakes
in the printing and preparation of instrl-
ments, for in each case the existence of n
mistake must be shown by human tcsti-
mony and is therefore liable equally as in
this case 10 be false. The law does not
presume that men will commit perjury.
nor that they will perpetrate frauds upon
their fellow men. but, when the facts
justify. the law will presume fraud from
the acts done. and when the fraud is cs-
tablished, will punish the guilty party by
refusing to give itself to the party per-
petrating the fraud and therefore deny
him the right to collect the debt for which
the instrument was given: not that JUS
tice to the maker of the note demands
such punishment. hut for the protection
ervation of the integrity of that charac-
ter of instruments. The aim of the law
is to punish the guilty. but the result of
the rule claimed would be to visit that
punishment upon the innocent. No in.
justice has been done Louis Otto i'm this
case. He admits that he owed the ac.
count and that he has not paid il. His
only complaint is that the innocent act
of Half in correcting the mistake is not
punished by releasing him. Otto. from the
payment of Il just demand.
Fifth-The note being discharged 10y
the alteration the colaterals were like
wise discharged. and the court erred in
holding that Half Il Bro. could retain the
collateral notes to secure the account fol
which error the judgments of the courts
below will be reversed and the Judgment
here rendered as follows. 1t is ordered
that the note executed by l.. X j. A. Otto
be cancelled, and that the four collateral
notes be restored to Louis Otto; that
Louis and j. A. Otto recover of Half 4
Bro. all costs in all the courts; and that
Half X Bro. recover of Louis Otto the
sum of S1996.46 with interest at 6 pei
cent from April %. 1895
Opinion by Brown. j.
Farmers and Merchants National banl
VS.. Sam Novich ct al, certified questions
in case from McLennan county, Thirt
district: answered in favor of appellees.
Appellant brought this suit on a prom
issory note making Sam Novich, Il. Noyicl
e. ~