The parties appear, and are referred to here as in the trial court. On March 22, 1904, defendants executed and delivered to Bell Bros. six promissory notes each for the principal sum of $1,000. Plaintiff subsequently became the holder thereof, and in December, 1908, commenced action thereon in the court below. Defendants answered, alleging among other defenses as to each of said notes that:
"After these defendants had made, executed, and delivered said note, the same was fraudulently and materially changed and altered in this, to wit: That the word 'eight' has been added and written in said note immediately above the word 'six,' which word 'six' was erased at the time of the execution and delivery of said note by these defendants, said change and alteration having the effect of making said note one drawing interest at 8 per cent. per annum, while the note as signed and delivered by these defendants drew no interest, and that said alteration was made without the knowledge or consent of these defendants, and for the purpose of defrauding them."
To the foregoing defense plaintiff replied by way of general denial. There was trial to a jury, resulting in verdict and judgment for defendants, and plaintiff has appealed.
As presenting an epitome of the evidence, we quote from the brief of plaintiff as follows:
"It would not be possible, in a brief of this character, to set out this testimony in full or even an abstract thereof. It will be sufficient to show the general character of this testimony as the several witnesses substantially agreed in their testimony. The first witness offered by the defendant, J.J. McCully, testified, in substance: That in the spring of 1904 one W.C. Ditmars came to Helena with two horses that were kept at his barn, and sought to negotiate the sale of them to the farmers living in that vicinity. A preliminary contract was presented to these farmers for signature, in which they agreed to take stock to the amount of $200 each, the purchase price of each horse being $3,000. This preliminary contract provided that the notes should be $1,000 each, due in two, three, and four years, with interest at eight per cent.: that after the necessary signatures had been obtained to the preliminary contract, notes were presented to the subscribers for their signature, and that the notes at *Page 266 the time of signature, where the word 'six' appeared printed in the body of the notes, and provided for interest at the rate of 6 per cent. per annum, had been erased, and there was no rate of interest written above it, and that in the conversation preliminary to the execution of the contracts and notes Ditmars and Samuel Bell had both stated that the notes were to be without interest; that he signed the note at the office of George Kneeland, one of the defendants; that he examined the note at the time and that the word 'eight' was not written therein. Other of the defendants who testified say that the notes did not contain the word 'eight' written above the erasure signed by them at their homes when presented by Mr. Ditmars in company with the defendant Geitgey and the defendant Zimmerman. The defendants also offered the testimony of one M.W. Denninger, who testified substantially that he was the cashier of the bank at Helena for some time after the execution of these notes, and that some time in the summer of 1904 these notes were presented to him at his bank by W.C. Ditmars, for the purpose of having the bank purchase them; that at that time the notes did not bear any rate of interest, and were then in the possession of Ditmars. The plaintiff offered the testimony of Samuel Bell who testified that he wrote the body of the notes; that he prepared them at the request of Ditmars and Geitgey, and that the same were prepared for the preliminary contracts which had been signed by the purchasers; that that contract provided that the rate of interest should be 8 per cent., and the time to be two, three and four years instead of one, two, and three years, as was his custom in the sale of horses of this class; that he erased the word 'six' and wrote the word 'eight' above it in each of said notes, and that after their execution they were left in the hands of Ditmars and two of the defendants, Geitgey and Zimmerman, who were entitled to a commission out of the proceeds of the notes for effecting the sale, and that the same were not delivered to him until nine or ten months afterwards, when they were delivered to him at Wooster, Ohio, and that at the time they were received they provided for interest at the rate of 8 per cent. per annum; that after the notes were prepared by him they were de livered to Ditmars, Geitgey, and Zimmerman to procure the signatures of the purchasers; that he saw the notes after they were executed, and they were then in the same condition that they are at this time."
Plaintiff complains of the giving of the following instructions:
"You are instructed that if you find by a preponderance of the evidence in this case that when the notes sued on were originally executed and delivered to Bell Bros., the word 'six' had been erased or crossed out in such a way as to leave the notes to read 'with interest at per cent. per annum,' and that after the execution and delivery of said notes they were altered or changed without the knowledge, authority or consent of the defendants, so as to read 'with interest at eight per cent. per annum,' such a change would be a material alteration, and said notes would be void in the hands of the plaintiff, and your verdict should be for defendants."
Prior to the passage of the Negotiable Instruments Act (effective June 10, 1909), a material alteration of a promissory note by the payee, without the consent of the maker, avoided it as against the maker, even in the hands of a bona fide holder without notice of such alteration. See Citizens' Bank of Ramona v. Grant, 52 Okla. 256, 152 P. 1082, where the authorities are collated.
The test as to whether an alteration of a note is material does not depend upon whether it increases or decreases the maker's liability, but upon whether the instrument has the same operation and effect after the alteration as it had before. Citizens' State Bank of Ramona v. Grant, supra; Commonwealth Nat. Bank v. Baughman, 27 Okla. 175, 111 P. 332; International Bank of Coalgate v. Mullen Mullen,30 Okla. 547, 120 P. 257, Ann. Cas. 1913C, 180; German-American Bank v. Hennis, 54 Okla. 146, 153 P. 671.
Plaintiff insists that if there was an alteration of the note, it was not the act of the plaintiff or its assignor, but that of a stranger, amounting to a more spoliation, and recovery may still be had according to the original terms of the instrument. There can be no contention as to who changed the notes from their original form and wrote therein the word, "eight," as Bell, a member of the payee firm, testified that he himself so altered the same. In Commonwealth Nat. Bank v. Baughman, supra, it is said:
"The jury was instructed that if, after the execution of the note, the alleged alteration was made by any person without the knowledge or consent of defendant, such alteration vitiated the note. This stated the rule too broadly to the extent that it declares that a material change made in the note by any person vitiates it. The rule prevailing in the courts of the United States is that, if a stranger without any complicity with the payee or holder of the note changes its terms, such change is a spoliation, and does not vitiate the note. It is only when the terms of the note are changed by a party thereto that the same may be termed an alteration, and result in avoiding the note. Andrews v. Calloway, 50 Ark. 358, 7 S.W. 449; Daniel on Negotiable Instruments, par. 1373. We do not think, however, that the error committed in this instruction was prejudicial, for there was no contention about who made the change in the terms of the note. All the evidence is that the word 'ten' was struck out *Page 267 by Generes, the payee, and the word 'eight' inserted by him. The conflict in the testimony is as to when said change was made. The evidence of plaintiff is that it was before the execution of the note, and the evidence of the defendant is that it was done afterwards. There was no contention by either party that the change was made by a stranger to the note."
Upon the foregoing authority we are constrained to hold that the giving of the above instruction did not constitute prejudicial error.
Plaintiff, also insists that by making certain payments on the notes — some of which were applied to the satisfaction of interest at the rate of 8 per cent. per annum — and by retaining possession of the horse, for the purchase price of which the notes in suit were given, defendants waived the right to rely upon an alteration of such notes, and must be held to have ratified and adopted the same as altered. It will be noted, in this regard, that neither in its petition nor reply did the plaintiff plead any facts or circumstances tendering such issue of ratification or estoppel. Recovery was sought on the notes in their original, unaltered form, as they were alleged to have been executed by defendants. The alteration thereof was specifically set forth and relied upon as a defense in the answer, and was denied by the reply. There was no offer by the plaintiff at the trial to amend the petition or reply so as to present the question of ratification or estoppel. And in its brief plaintiff states:
"The only question presented to the jury was whether there had been a material alteration of the notes after their execution and delivery to Bell Bros."
In 1 R. C. L. 1050, it is stated:
"If the holder of an instrument materially altered without the knowledge or consent of the maker relies upon a subsequent ratification by or estoppel in pais against such maker, the ratification or estoppel must be pleaded."
We regard this as a correct statement of the rule applicable. Capital Bank v. Armstrong, 62 Mo. 59; Erickson v. Bank,44 Neb. 622, 62 N.W. 1078, 28 L. R. A. 577, 48 Am. St. Rep. 753.
"In order for a party to avail himself of the doctrine of estoppel as constituting a part of his cause of action or defense, he should plead the facts constituting the estoppel." Nance v. Okla. Fire Ins. Co., 31 Okla. 208, 120 P. 948, 38 L. R. A. (N. S.) 426.
Plaintiff also complains of the giving and refusal of certain instructions. It is not deemed necessary to set forth the charge of the court, nor the instructions requested by plaintiff and refused. It is sufficient to say that we have carefully examined the same, and hold that those given fairly stated law, and there was no error in the refusal to give those requested.
Again, it is contended by plaintiff that it is entitled to a reversal of the judgment, herein on account of the misconduct of opposing counsel in making improper statements to the jury. It does not appear that objection to such remarks was made at the time, or that the attention of the trial court was directed thereto. Under such circumstances, plaintiff, having failed seasonably to object to such conduct in the trial court, will not be permitted to predicate error thereon in this proceeding. Kaufman v. Boismier, 25 Okla. 252, 105 P. 326; Coalgate Co. v. Bross, 25 Okla. 244, 107 P. 425, 138 Am. St. Rep. 915.
An examination of the entire record discloses no error prejudicial to the rights of plaintiff.
The Judgment should therefore be affirmed.
By the Court: It is so ordered.