Kilkelly v. Martin
Kilkelly v. Martin, impleaded, etc.
Headnotes
Summary
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
Opinion of the Court
Text extracted by OCR from a scanned original; check the original for exact wording.
DixoN, C. J.
The words “ ten per cent, interest if not paid when due,” written, the first three of them in the last line of the printed form after the printed words “ value received,” and' *530 before the signatures of the makers, and the residue of them below that line, clearly constituted a part of the note offered in evidence at the trial. The same words, if inserted before signing and with the assent of the makers, would have been considered a part of the contract, as much as if they had been written in the body of the note and entirely above the signatures of the makers. Warrington v. Early, 2 Ell. & Bl., 763 [75 E. C. L., 763], is a decision fully in point upon this question. It was there held that the addition, in the corner of the note, “interest at six per cent, per annum,” made after it had been signed, without the assent of the maker, but with the assent of the holder, materially altered the contract, and that the holder could not recover on the note against the maker. Lord Campbell, C. J., delivering the opinion of the court, said: “ The alteration was fatal. The note was made, payable six months after date with lawful interest. The holder, the present plaintiff, is a party to the addition, in the corner of the note, of the words ‘interest at six per cent, per annum.’ That, we think, was made part of the contract: had it been inserted in the body of the note, it would have unquestionably been so ; and, though it was inserted in the corner, if that had been done before the note was signed, it would have bound the maker, inasmuch as the effect of a written contract is to be collected from all within the four corners of the instrument.” And quite to the same effect also are the cases of Newell v. Mayberry, 3 Leigh, 250 , and Wait v. Pomeroy, 20 Mich., 425 .(4 Am. R., 395). And see likewise, 2 Parsons on Bills and Notes, 539, and cases cited.
The court below was correct in the general proposition held in the charge, that the alteration of a written instrument in a material point, with the knowledge or consent of the holder and party claiming under it, but without the consent of the party sought to be charged, extinguishes the liability of the latter. Such an alteration makes the contract void, and so *531 long as it remains in that condition' no recovery whatever can be had upon it. In this all the authorities agree.
This brings us to the question of ratification or subsequent assent on the part of the maker or person to be charged, and whether such assent may be shown by way of restoring validity to the instrument. Two cases are cited by counsel for the defendant to show that subsequent parol assent is insufficient for this purpose; but in both those the question arose upon instruments under seal, and it was held that such assent was unavailing. Sans v. The People, 3 Gilman, 327 ; Cleaton v. Cham bliss, 6 Randolph, 86. The opposite doctrine was held upon an instrument of the same nature in Hill v. Scales, 7 Yerger, 410. There are technical rules, still adhered to in some courts, that an attorney to execute a sealed instrument must be authorized by an instrument under seal, and that authority to insert anything in a sealed instrument after a delivery cannot be implied, or be expressly given by parol. Adherence to these rules would of course exclude the possibility of subsequent parol ratification with respect to instruments of the kind which had been so executed, or in which any words had been inserted or any alteration made after delivery, and nothing but a redelivery would suffice to make the instrument valid and effectual. The cases relied upon by counsel seem to have been decided in view of and in conformity to these technical rules, whilst in that last cited such rules were rejected. The same rules have been rejected by this court. Van Etta v. Evenson, 28 Wis., 33 .
But no difficulty of the kind arises in the case of simple contracts. The rule is well settled, that an alteration of an instrument not under seal, by one party, with the assent of the other, will not render void the instrument; and if this be so, then his assent, given after the alteration was made and where knowledge of it was brought to him, ought to have the same effect and be in all respects equivalent to such assent previously given or to an original authority granted, according to *532 the maxim, omnis ratihahitio retrotrahiiur ei mandato aequipara-tur. And upon this question we find no disagreement among the authorities. Humphreys v. Guillow, 13 N. H., 385; Perring v. Hone, 4 Bing., 28 [13 E. C. L., 328]; Kennedy v. Lancaster Co. B'k, 18 Pa. St., 347; King v. Bush, 36 Ill., 142 ; Collins v. Makepeace, 14 Ind., 448 .
It being established that the note would have become valid and obligatory upon the subsequent verbal assent of the defendant that he would be bound by it as altered, the next point of inquiry is, whether there was any evidence of such assent to justify the submission in manner as made by the court to the jury. The jury were instructed that “if, after the defendant became aware of the alteration, he sanctioned the alteration by agreeing to pay the note, the plaintiff can recover; otherwise not.” The bill of exceptions, certified to contain all the evidence, shows that there was no testimony upon which to found such instruction, and that the submission in that form was unauthorized. There was no evidence that the defendant ever agreed to pay the note in suit or to be bound by it. The only evidence was that the defendant offered to give his note, payable in sixty days, with security, if the plaintiff would wait, which offer the plaintiff refused to accept. Such was the testimony of both plaintiff and defendant, in which they entirely agreed, and there was no other evidence upon the subject. This was at most only an offer on the part of the defendant to become bound for the payment of the debt in a particular way. It was a conditional offer or proposition for a settlement, and not a promise, conditional or otherwise, to pay the note in suit or to be bound by that note. Considering that the defendant, who was but a surety in the note for the principal and so owed nothing except as he was bound in the capacity of joint maker, had been released from all obligation of payment because of the alteration which had been made without his assent, and that the note had become as to him of no more efficacy than a piece of blank paper without a signature, it follows *533 as a necessary consequence that he was at liberty, in assuming a new obligation to pay, or in ratifying the previously unauthorized alteration, to make such terms and conditions as he saw fit, and unless they were complied with he remained as before, discharged and free from all liability to the plaintiff in the premises. This proposition is too plain to require further exposition.
Our conclusion therefore is, that the court erred in its submission of this question to the jury, and that the verdict upon this ground cannot be sustained.
By the Court. — Judgment reversed, and a venire de novo awarded.
How later courts describe this case
No later court has written an explanatory parenthetical about this case yet.
Cited by 9 cases
View all citing references →Relies on it most ⓘ
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.