Waterman v. Vose

Where the jury were instructed that if they should find that, by the description of the note in a notice to the endorsers of its dishonor, that the endorsers might reasonably be presumed to know it referred to the note in suit; they might find the notice to be sufficient; such instructions were held to he correct. The alteration of a note of hand by the maker after it is endorsed, by adding the words “ with interest,” is material, and if made without the consent of the endorser he is not liable as such, although the alteration be made before delivery.

This action is assumpsit against the defendants as endorsers of a note of hand, the history of which is fully stated in the opinion. The verdict was for the plaintiff, and Exceptions were taken to the instructions of the court by defendants, Davis, J., presiding. in support of the exceptions, argued 1. That the notice being in writing, it was the duty of the court to decide whether it was sufficient, and not leave the question to the jury. “ If it was a point to be settled on inspection of the paper alone, it was more proper- that it should have been settled by the presiding judge.” Cbrtor v. Bradley, 19 Maine R., 62. “ The endorser stipulating to be responsible only on the condition of due presentment and due notice, may insist upon critical proof.” Warren v. Gilman, 15 Maine R., 70. And in that case the court held that the judge should have instructed the jury that seasonable notice had not been given. 2. The notice was not sufficient, and the judge should so have instructed the jury. “ A notice must, by express terms or by natural and necessary implication from the language used, contain in substance a true description of the bill, an assertion of duo presentment and dishonor of the bill, and that the holder or other person looks to the party to whom the notice is sent for indemnity and reimbursement.” Story on Bills, 456. Tlio circumstances of this case furnish the most conclusive argument against the sufficiency of the notice. The note had been altered by adding the words, “ with interestThese words are omitted in the notice. How could a jury bo allowed to infer that defendants knew they were called upon to pay a note “ with interest,” when the alteration was made without their knowledge. In the nature of tilings they could have no such knowledge. They did not know that there was any noto “ with interest,” in existence with their endorsement on it, and the notice gave them no information on the subject. 8. The alteration was material,,and varied the contract of the endorser, and this discharged them. The adding interest to the bill for the time it had to run, made a difference of $9,23 in the amount, and the alteration is as material as if the $260 had been altered to $269,23, and if it could be altered to that it could be altered to any sum Nash pleased. A bill of exchange was held void, even as against acceptors, by an alteration in the date, although there was a count in the declaration describing it by the right date, and the bill had been demanded on the day when by the original date it was due, as well as on the day it was due by the altered date, and although it was found to have been altered before it came into the hands of the plaintiffs, who were bona fide holders, without any other notice than- the appearance of the bill gave. Masters v; Miller, 4 Tenn. R., 320. Our case is much stronger,, for here are endorsers — a contingent liability, and the alteration was made by the maker of the note, at the request and with the knowledge of the plaintiff. Chitty on Con., 60.-8-, 4 Am. ed.; Newell v. Maybery, 3 Leigh., 250; Bayley on. Bills, 184; Tidmont v. Given, 1 M. and S., 735; 4 Barn, and Aid., 197; Goodman v. Eastman, 4 N. H., 455; Onthwaite v. Jantly, 4 Camp., 179; Hall v. Wallis, 11 Mass., 309; Bank of America v. Wadsworth, 19 John., 391; Hatch v. Hatch, 9 Mass., 307; Gooch v. Bryant, 13 Maine R., 386; Carlton v. Clark, 20 Maine R., 337; Adams v. Frye, 3 Metcalf, 103. ■ 4. It would make no difference that the alteration was made before Nash signed, even if that were the case. Putnam v. Sullivan, 4 Mass., 45. By writing the note and then endorsing it, the defendants declared the liability they were content to assume, and it cannot be changed without their consent. It differs entirely from an endorsement of a blank papei’, for that gives an implied authority to fill it up. Here it was already filled up. 5. The fact that plaintiff knew when the alteration was made, and that it was not made in the presence and with the consent of defendant, take from him all claim for considerar tion as an innocent holder without notice. The note being filled up and endorsed the presumption was that defendant's contract was expressed therein, and plaintiff had no right to infer authority in Nash to make the alteration. And there being now no proof of such authority, plaintiff is bound by the legal presumption. Putnam v. Sullivan, 4 Mass., 45, gives the reason why a man may be held by a note written over his blank signature. There can never be a right to alter the contract of another without his consent, and such alteration, if material, makes it void. The only question is, who shall suffer, and this depends on notice. No man has a right to the benefit of an alteration he knew to be wrongly made. 6. The question of fraud does not necessarily arise in the case, and there was no propriety in the court alluding to it. The ground of avoiding an altered contract is that the contract sued is not.the contract made. As to fraud, the note and the proof of the alteration, with», out the knowledge of the defendants, should have gone to the jury for them to draw such inferences as would naturally come from these facts. Defendants neither charged direct fraud, nor did they admit there was no fraud; they simply put in the facts, to have such weight as they were legally entitled to. 6. The instructions in relation to defendants’ knowledge of the purpose for which the note was to be used, as affecting this case, were wrong. All the conversation about the oxen was before the note was made, and when the note was written by Y ose and de-. livered, he thereby, in writing, defined the liability which they were content to assume, and nobody, without their consent, had a right to change it. Besides, it is clear that Vose & Joyce agreed to endorse a note to pay for oxen which could be bought on seven months, without interest. Nash must have told them these were the terms, for it is evident he thought so at the time. Suppose he had raised the price to four or five hundred dollars, or changed the time to three months ; could the defendants be holden. An alteration of the date of a note discharges the endorser unless proved to be made with his consent. His offer to renew the note, without proof of his knowledge of the alteration, will not bind him, and such an offer has no tendency to prove such knowledge. Kennedy v. Lancaster Co. Bank, 18 Penn-. R., 347. Simpson v. Stockham, 9 Penn. R., 186; Hacker v. Jami-son, 2 Watts and Serg., 438; Hills v. Barnes, 11 N. H., 395, are to the same effect. The true question is, whether the contract attempted to be enforced in this action is the one defendants made. The first request was properly refused. The demand and notice were proved if the notice sufficiently described the note. The question, of identity was properly left to the jpay. 2. The second request was given,, except upon one point. The court declined to instruct the jury that there was no evidence in the case from which the jury could infer the consent of the defendants to the alteration of the note, but did instruct them that whether such alteration was made, and if so, when made, and whether the defendants consented, the jury might determine from the evidence in the case. 3. The instructions of the presiding judge upon the two last requests was correct. The alteration of the note made by Nash before the delivery to Waterman, under the circumstances of this case, would not render the note void as to the defendants. 1. The presumption of law is that, if an alteration be made in a note before it is issued, it is made with the consent of the parties to the note. Eddy v. Bond, 19 Maine R., 466; Hall v. Buss, 1 Maine R. 338. 2. From the agency and confidence reposed in Nash by the defendants, the consent of the latter to the alteration is to be inferred. Hall v. Russ, 1 Maine R., 338. 3. The alteration of the note, being’ made to make it conform to the original intent and terms of the contract between the parties, it is not void. It is an alteration to correct a mistake, which may always be done. This alteration is clearly not fraudulent on the part of the holder; striking out those words would leave the liability of defendants, just as they allege it should be. Nevins v. DeGrand, 15 Mass. R., 436, is an authority to this point. There the court permitted the plaintiffs to restore what they had erased. Parker, C. J., says, “ It being clear that the words now moved to be restored were stricken out with honest intentions, and that the acceptor bas in no way been prejudiced thereby or can be in any way injured by the restoration, justice requires and the law allows it to bo done.”