Neff v. Horner

1. A voluntary alteration of a bond, note or other instrument under seal in a material point, to the prejudice of the maker, avoids it unless done with the assent of the parties to be affected. 2. The rule as to commercial paper is more stringent, the burden being on the holder to disprove an apparent material alteration on the face of the paper. 3. Worrell v. Gheen, 3 Wright 288, is an exceptional case. 4. A spoliation by a stranger or accidental alteration through mistake, leaves the instrument as effectual in law as it was before. 5. Pennington, and others as his sureties, executed a sealed note to Horner ; when brought to Horner he would not receive it unless “ interest semiannually” were added. Pennington inserted these words above the signatures, without the knowledge of the sureties. Held, that the whole note was avoided as to the sureties. 6. The ground of the rule that alteration avoids an instrument is public policy to insure the protection of the instrument from fraud and substitution. 7. The purpose of the rule is to take away the motive for alteration by forfeiting the instrument on discovery of the fraud. 8. In a case in which the question was a material alteration of an instrument, aplea of non est factum was filed, but not noted on the judge's trial list. The case proceeded till the charge, as if the plea had not been filed ; the court refused then to take notice of the plea. Held to be error.

Error to the Court of Common Pleas of Greene county; No. 216, to October and November Term 1869. This action was in debt by Samuel Horner against John Neff, Joseph Dougherty, Thomas Wiley and Thomas Curl, on the following note:— -November 13th 1865. One year after date we or either of us promise to pay to Samuel Horner the just sum of Five Hundred Dollars in seven thirties for value received of him, whereunto witness our hands and seals. Interest to be paid semi-annually. Jacob A. Pennington, [l. s.' John Need, [l. si Joseph Dougherty, [l. si Thomas Wiley, [l. si Thomas Curl, [l. si The pleas were non est factum, nil debet and payment with leave, &c. The plea of non est factum, was not entered at the time of trial on the trial list prepared by the prothonotary for the judge; the parties proceeded in the trial until the charge, as if the plea had not been filed. On the trial before Gilmore, P. J., the plaintiffs gave the note in evidence and rested. The defendant called Jacob A. Pennington, who testified, that he was principal in the note and the other obligors his sureties; that the words “ Interest to be paid semi-annually” were not in the note when the sureties signed it; there was no understanding that the interlineation was to be made. When the note was delivered to the plaintiff the interlineation was not in it. The plaintiff testified in rebuttal that he saw Pennington write the interlineation; that he, plaintiff, would not take the note until he had done so. Pennington told him he was at liberty to write it, that it was so understood by the bail. There was other evidence that the interlineation was made after the execution of the note; there was no evidence that it was made with the consent of the sureties. The plaintiff’s first point was :— “ Under the pleadings in this case the execution of the note on which suit is brought, and the plaintiff’s cause of action as set forth in the declaration which recites the note, are admitted, and that all the evidence in relation to the words ‘ interest to be paid semi-annually’ is not to be taken into consideration by the jury.” The defendants’ points among others were:— “ 1. The alteration of the note by adding the words ‘ interest to be paid semi-annually,’ is a material alteration.” 2, 3 and 4. Asserted that the alteration although made by Pennington was not binding on the sureties unless made with their consent. “ 7. The parties having gone on with the investigation of the question of the making of the alteration of the note, and each party having given evidence bearing on the question, the plaintiff cannot on the argument to the court raise the objection that such evidence was properly admissible only under the plea of non est factum, and that such plea not being in the question of the alteration, cannot be considered. Under these circumstances the court ought to disregard the objection, or permit the proper plea to be put in now.” Answer: “The body of the note as executed by defendants was not the subject of evidence; all that was investigated was the alteration. We cannot allow the plea of non est factum to be put in after the note is received in evidence and the case is closed; and we so noted when the request was made at the moment the counsel were proceeding to address the jury, and after all the evidence had been given, and the note received in evidence.” “ Note by the court: While the court was charging the jury, it was discovered that the plea of non est factum was actually in, but not on the judges’ docket. The court were now requested to take notice of this, but refused to do so for the reason that, the trial had been conducted on different pleas.” The court (Gilmore, P. J.) charged: * * * “ The first points made by the plaintiff involve the same matter. The pleading in the case admits the execution of the note, and under the plea of payment with leave, nothing but equitable matter can be alleged as defence. This alteration, as it is called, is not obligatory on the defendants unless they consented to the alteration. This consent is denied on oath by defendants, and is not proved by the plaintiff, and no recovery'can be had for any interest on the note before it became due. But if the plea non est factum had been put in, we would have held in answer to the defendants’ first and second points, that the alteration would not have affected the obligation of defendants to pay the note, as it was when they executed it. It appears if the evidence of Horner is r.elied on, that when the note was brought to him, signed by all the defendants, he would not receive it unless it contained an obligation to pay the interest semi-annually. Pennington then informed him that he had authority to add this, and did so, by making this alteration or memorandum, whereupon Horner gave him the money or bonds. It is true, Pennington denies this, and the defendants on oath say they gave no such authority. Now this writing below the body of the note is not an interlineation, nor in the judgment of the court is it an alteration of the body of the note, which had already been executed, signed and sealed, but a mere side memorandum which might as well have been on the back of the note. It is sufficient in our opinion, that it should be ruled that it is no part of the note, and that the plaintiff can derive no advantage from it. This we think, where no fraud was intended, is sufficient; the plaintiff gains nothing, and the defendants lose nothing, and we see no reason to be forced to say that the memorandum is a part of the obligation and releases the parties from an obligation admitted to be fair.” * * * The verdict was for the plaintiff for $503.37. The defendants took a writ of error and assigned for error : — the charge; the answer to their 7th point; and “not allowing the defendants the full benefit of the plea of non est factum, when it was discovered to be a part of the record in the case.”