On November 6, 1921, appellant drew his check on the American National Bank of Idaho Falls, *Page 683 payable to cash, in the sum of $60 and delivered the same to Kelly Hargrove. By mistake the check was dated 10-5, 1921. On the next day Hargrove presented the check to the bank on which it was drawn. Payment was refused and there was written on the face of the check the words "payment stopped," appellant having notified the bank not to pay the check. The bank returned the check to Hargrove who, on the same day, went to the store of respondent and purchased an overcoat. He gave the check in payment and received the difference between the face of the check and price of the coat in cash. Prior to negotiating the check to respondent the words "payment stopped" had been, in some manner, entirely removed from the check so that when respondent received the check he noticed no indication of alteration or erasure. On the following day respondent presented the check to the bank on which it was drawn and payment was refused. Appellant thereafter refused to pay the check and this action was instituted to recover the amount of the check.
As a defense to the action appellant alleged that he had delivered the check to Hargrove and received from him the sum of $60; but that a difficulty arose between them with respect to the check and that he gave back to Hargrove the sum of $60 and Hargrove instead of returning the check to him pretended to tear it up but that he tore up another check of the same bank; that later in the day somebody told him that Hargrove had not destroyed the check; that he looked up Hargrove, who assured him that he had destroyed it; that, being suspicious of Hargrove, he notified the bank not to pay the check if presented. The case was tried to the court and a jury, and a verdict was returned in favor of respondent. The appeal is from the judgment.
At the time the instrument was taken by respondent, it was complete and regular on its face; respondent had no notice that the instrument had been dishonored; it was taken in good faith and for full value; and respondent had no notice of any infirmity in the instrument or of any defect in Hargrove's title. The words "payment stopped" *Page 684 had been so completely removed as to leave no mark upon the instrument indicating that an erasure had been made. Respondent was a holder in due course. (C. S., sec. 5919.) It is not necessary to a decision of this question to determine whether the erasure constituted a material alteration of the instrument. The negotiable instruments law provides that when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor. (C. S., sec. 5991.) No suggestion is made that respondent, in any manner, was a party to the alteration. Being a holder in due course, therefore, respondent was entitled to enforce payment of the check according to its original tenor.
There was nothing unusual in the transaction by which respondent acquired the instrument. Both the maker and the payee lived in Idaho Falls, and the employee, who took the check, knew both Hargrove and appellant. However innocent appellant may be, it was his fault that the check remained in the possession of Hargrove both before and after the erasure. It was his negligence in not requiring the return of his check, after he had returned the consideration for which it was issued, that resulted in the negotiation of the check to respondent. As between appellant and respondent, under the facts, the loss should fall upon appellant, for it was he who caused the loss.
We have carefully considered all the assignments of error set forth by appellant, and find no error prejudicial to him.
The judgment is affirmed. Costs to respondent.
McCarthy, C.J., and Dunn and William A. Lee, JJ.. concur. *Page 685