Snider v. Ranchnbush

5 Ky. Op. 148, 1872 Ky. LEXIS 251

• Court: Court of Appeals of Kentucky
• Decided: March 6, 1872
• Status: Published

Opinion

Opinion of the Court by

Judge Hardin:

It does not appear to us that the appellants established any valid cause of action on their counterclaim, and there was no error in dismissing it; but on ithe special plea of 'non est factum the judgment must be reversed. An inspection of the original note now before us, and the variance between- it, in its terms, and the description of it in the lease simultaneously executed furnished strong presumptive evidence that the words “with a lien on their crop for the within amount” were interpolated in the note after its execution; and this alteration being apparent the burden was on the holders of proving it was made either by the obligors or with their authority or consent, according to principles well settled. There is not sufficient evidence on this question to repel the presumption of the unauthorized alteration of the note. The testimony of. Stallman, the only witness examined on the subject, proves nothing more than a dispute between Snider and Manning as to the alteration 'in the note having been inserted by consent, after the.note was given, and rather involves an admission on the part of Manning that he made the alteration and claimed to have been authorized to do so, Which Snider denied. We see no reason why Manning was not a competent witness on- the question, which it was so important to solve on the part of the appellees for whom he acted as agent, yet he was not examined. We regard the alteration as materially changing the terms of the note, and must, therefore, conclude that the note as altered-is not the act and deed of the appellants. Wherefore, the judgment is reversed and the causé remanded with instructions to dismiss the petition but without prejudice to any cause of action the appellees may have for such founded on an express or implied agreement to pay for the use of the land.