Trigg v. Taylor

Richardson, Judge,

delivered the opinion of the court.

It is a general rule that any alteration in a material part of a bill of exchange or promissory note, as in the date, sum, or time when payable, or consideration, or place of payment, will render the bill or note invalid, as against any party thereto not consenting to such alteration, even in the hands of an innocent holder. (Edwards on Bills, 95; Chitty on Bills, 182; Woodworth v. Bank of America, 19 John. 391 ; Nagro v. Fuller, 24 Wend. 374 ; Bruce v. Westcott, 3 Barb. 374 .) The application of this principle is not affected by the skillfulness with which the alteration is made, or the probability that the closest observer will fail to discover it. In Hall v. Fuller, 5 Barn. & Cress. 750, a check, properly filled up for three pounds, drawn by a customer on his banker, came into the hands of a third person, who by a chemical process expunged the original sum and inserted a larger sum, but in such a manner that no person in the ordinary course of business could observe it. The banker paid the check, and it was decided that he could not charge the customer for any thing beyond the sum for which the check was originally drawn, and that as the customer in drawing the check gave no opening to the fraud, the consequences of it fell on the banker.

No good reason is perceived why the rule would not prevail in the case of an accommodation note fraudulently altered before it is negotiated; and the cases that distinguish accommodation paper, before it is issued, and negotiated instruments, will be found, we think, to have arisen under the *248 English stamp acts. The altered note is no more the act of the maker in one case than in the other; and because a person may be willing to serve a friend by the use of his name for a given sum, it is against the usual course of such transactions and the experience of men to say that an authority is inferred to substitute a large sum for that mentioned and fully written in the body of the note. The recognition of such a doctrine would destroy all confidence, for few men would be willing to aid others at the expense of their own ruin, which no degree of caution could avert. If a blank is left for the amount to be inserted, it may be said with some propriety that the person signing the instrument may be considered as having authorized it to be filled up for any amount, and that it is proper that he, rather than an innocent holder, should suffer the consequence of any abuse of his confidence; but no such authority can be presumed when the instrument is complete and the blanks entirely filled. If, however, a bill, note or check is so negligently drawn, with blank spaces left for the addition of other words or figures, that alterations can be made so as not to excite suspicion, the loss ought to fall on the person in fault; according to the familiar rule, that when one of two persons must suffer by the act of a third, the one who affords the means to the wrong-doer must sustain the loss. This was the principle on which Young v. Grote, 4 Bing. 253, was decided. In that case, a customer of a banker delivered to his wife printed checks, signed by himself, with blanks for the sums to be filled up by her. She caused them to be filled up with the words fifty pounds, the fifty being commenced with a small letter in the middle of a line, and in this condition she delivered the check, which was afterwards altered by inserting at the beginning of the line in which the word fifty was written, the words three hundred. The banker paid the check for three hundred and fifty pounds, and it was held that the loss must fall on the customer. But the case at bar was not tried on this theory; and the question whether the defendant was guilty of negligence in leaving open spaces in the note *249 so that Norris, with greater facility, could alter the amount and impose on the plaintiff, was not submitted to the jury in any of the instructions.

The fifth instruction asked by the plaintiff was properly refused, because the fraudulent alteration avoided the security, and as the plaintiff could not recover by force of the instrument on which he declared, he could not recover at all. (Sutton v. Toomer, 5 Barn. & Cress. 416; Chitty on Bills, 191.) The other judges concurring, the judgment will be affirmed.