175

177

out regard to any change in the maturity of the paper. So, a surety will be discharged by a change of date for the purpose of making the interest run for a longer time; 176 or even by a correction on the maker's part to the actual date when the note was made.1 But where a date is altered without the holder's knowledge, by a draftsman, to the date actually intended, and the original date is restored at the maker's suggestion, the note will be good as against him.178 So, it is not a material alteration to prefix to a note the place where it was made.179

Alteration in Time of Payment.

§ 1758. An alteration in the time of payment of a bill is material,180 whether the time of its running is thereby shortened11 or lengthened.182 So, the erasure of a contemporaneous memorandum, making the note payable in installments, will defeat a recovery upon

tended one day, so as to fall on the discount day of the bank. Union Bank v. Cook, 2 Cranch, C. C. 218, Fed. Cas. No. 14,349.

175 Low v. Merrill, 1 Pin. (Wis.) 340.

176 Benedict v. Miner, 58 Ill. 19. So, where the note was intentionally postdated, with interest "after maturity," and it was afterwards altered to the actual date. Hamilton v. Wood, 70 Ind. 306; Hamilton v. Hooper, 46 Iowa,

515.

177 Hocker v. Jamison, 2 Watts & S. (Pa.) 438; Brown v. Reed, 79 Pa. St. 370; Miller v. Gilleland, 19 Pa. St. 119; Bowers v. Jewell, 2 N. H. 543; Brown v. Straw, 6 Neb. 536; Henderson v. Wilson, 6 How. (Miss.) 65.

178 Collins v. Makepeace, 13 Ind. 448.

179 Houston v. Potts, 64 N. C. 33. But altering the local date of a note is material, and renders it void. McQueen v. McIntyre, 30 U. C. C. P. 426.

180 Benj. Chalm. Dig. art. 247; Chit. Bills, 216; 2 Daniel, Neg. Inst. 388; Walton v. Hastings, 4 Camp. 223; Paton v. Winter, 1 Taunt. 420; Ives v. Bank, 2 Allen (Mass.) 236; Hervey v. Harvey, 15 Me. 357; Norwalk Bank v. Adams Exp. Co., 4 Blatchf. 455, Fed. Cas. No. 10,354; King v. Hunt, 13 Mo. 97; Lisle v. Rogers, 18 B. Mon. (Ky.) 537; Westloh v. Brown, 43 U. C. Q. B. 402.

181 Alderson v. Langdale, 3 Barn. & Ald. 660; Clifford v. Parker, 2 Man. & G. 909; Taylor v. Taylor, 12 Lea (Tenn.) 714. E. g. by cutting off the days of grace. Steinau v. Moody, 100 Ga. 136, 28 S. E. 30.

182 Davis v. Jenney, 1 Metc. (Mass.) 221; Desbrow v. Weatherley, 6 Car. & P. 758; Stayner v. Joice, 82 Ind. 35; Douglass v. Scott, 8 Leigh (Ky.) 43; Flanigan v. Phelps, 42 Minn. 186, 43 N. W. 1113. But see, contra, Drexler v. Smith, 30 Fed. 754, as against maker.

it.183 And it is a material alteration to make it payable "after sight" instead of "after date," 184 or to add the words "on demand." 185 But, if no time of payment is expressed, the addition of "upon demand" will not be material.186 So, it is material to change a note payable on demand so as to make it payable one day after date.187

Alteration in Place of Payment.

§ 1759. It is a material alteration to add a place of payment, where none is expressed,188 especially by making a note payable at bank, where that makes it negotiable.189 So, it is a material alteration to change the place of payment expressed in the paper.190 But it has been held not to be material to erase the place of payment expressed, since the rights of the defendant are only enlarged by so doing.191 Even where, by statute, the acceptance of a bill is a general acceptance, although a place of payment is named generally, it will still be a material alteration to insert a place of payment in an

183 Bay v. Shrader, 50 Miss. 326.

184 Chit. Bills, 209, 211; Long v. Moore, 3 Esp. 155, note.

185 Benjamin v. Delahay, 9 Ill. 536; Farmers' Nat. Bank v. Thomas, 79 Hun, 595, 29 N. Y. Supp. 837.

186 Benj. Chalm. Dig. art. 247; Aldous v. Cornwell, L. R. 3 Q. B. 573. So, the addition of "when called on" to such a note. Gist v. Gans, 30 Ark. 288. 187 Lee v. Murdoch, 4 Pat. App. 261.

188 Nazro v. Fuller, 24 Wend. (N. Y.) 374; Charlton v. Reed, 61 Iowa, 166, 16 N. W. 64; Oakey v. Wilcox, 3 How. (Miss.) 330; Southwark Bank v. Gross. 35 Pa. St. 80; Toomer v. Rutland, 57 Ala. 379; Sudler v. Collins, 2 Houst. (Del.) 538; Townsend v. Wagon Co., 10 Neb. 615, 7 N. W. 274; Winter v. Pool, 100 Ala. 503, 14 South. 411; Pelton v. Lumber Co., 113 Cal. 21, 45 Pac. 12; Simmons v. Atkinson & Lampton Co., 69 Miss. 862, 12 South. 263; unless explained by the holder, Hill v. Cooley, 46 Pa. St. 259; or unless it is what the law would imply, Schuler v. Gillette, 12 Hun (N. Y.) 278; or for the convenience of all parties, Etz v. Place, 81 Hun, 203, 30 N. Y. Supp. 765.

189 Shanks v. Albert, 47 Ind. 461; McCoy v. Lockwood, 71 Ind. 319; Ballard v. Insurance Co., 81 Ind. 239; Cronkhite v. Nebeker, Id. 319; Morehead v. Bank, 5 W. Va. 74.

190 Adair v. Egland, 58 Iowa, 314, 12 N. W. 277; Charlton v. Reed, 61 Iowa, 166, 16 N. W. 64; Bank of Ohio Valley v. Lockwood, 13 W. Va. 392; McQueen v. McIntyre, 30 U. C. C. P. 426.

191 Major v. Hansen, 2 Biss. 195, Fed. Cas. No. 8,982. But see 2 Daniel, Neg. Inst. 389.

acceptance, where none is named, and the acceptor will be discharged by such alteration.192 So, it is material to alter the place of payment named in an acceptance, although it is done because the house originally named had become insolvent.193 But it is not material to write the acceptor's address under his signature after acceptance.19*

Alteration of Memorandum.

§ 1760. A material alteration must change some essential part of the contract, and not a mere memorandum or earmark only.195 In many cases the addition of a memorandum to a bill is not a material alteration.196 Thus, it is not material to add a memorandum that certain interest is to be refunded if the note is paid before maturity; 197 or to indorse a statement as to the wife's property, on the strength of which the credit was given.198 And a surety will not be discharged by an unauthorized memorandum made by an

192 Byles, Bills, 324; Benj. Chalm. Dig. art. 247; Chit. Bills, 309; 2 Daniel, Neg. Inst. 390; Cowie v. Halsall, 4 Barn. & Ald. 197; Calvert v. Baker, 4 Mees. & W. 417; Crotty v. Hodges, 4 Man. & G. 361; Burchfield v. Moore, 3 El. & Bl. 683; Desbrow v. Weatherley, 6 Car. & P. 758, 1 Moody & R. 438; Taylor v. Moseley, Id. 439, note; Hanbury v. Lovett, 18 Law T. (N. S.) 366; McIntosh v. Haydon, Ryan & M. 362; Whitesides v. Bank, 10 Bush (Ky.) 501. But see, contra, McDowall v. Boyd, 17 Law J. Q. B. 295; Trapp v. Spearman, 3 Esp. 57. And as to such addition by a memorandum at the foot of the bill, or in a blank left, see infra.

193 Benj. Chalm. Dig. art. 247; Tidmarsh v. Grover, 1 Maule & S. 735. And such alteration amounts to a forgery. Rex v. Treble, 2 Taunt. 329, Russ. & R. 164.

194 Marson v. Petit, 1 Camp. 82, note.

195 2 Pars. Notes & B. 544.

196 E. g. that the note was "left with A. as collateral," Bachellor v. Priest, 12 Pick. (Mass.) 399; or was to be paid "at G. Bros.', Jan. 10," American Nat. Bank of New York v. Bangs, 42 Mo. 450; or had been discharged for a smaller sum than its face, "and should be so read," Merchants' & Mechanics' Bank v. Evans, 9 W. Va. 373; or by an indorsement of payment, Howe v. Thompson, 11 Me. 152; or a pencil memorandum as to the consideration, Maness v. Henry, 96 Ala. 454, 11 South. 410; or adding an erroneous due date, Fanshawe v. Peet, 26 Law J. Exch. 314. So, although the note was not dated, and was payable two months after date, and a memorandum was made of the correct date of maturity. Fitch v. Jones, 5 El. & Bl. 238.

197 Herrick v. Baldwin, 17 Minn. 209 (Gil. 183).

198 Krouskop v. Shontz, 51 Wis. 204, S N. W. 241.

201

agent, after maturity of the note, as to the subsequent payment of interest.199 So, it has been held immaterial to change a memorandum on a note, to the effect that it was "subject of" a certain contract, so as to read "subject to" it.200 And an agreement, indorsed by the maker of a note, binding himself to pay a higher rate of interest, is not an alteration which will affect or discharge a surety, although made without his consent.2o In like manner, the cutting off of a mere memorandum is often immaterial.203 In many cases, however, the adding of a memorandum on the margin of a note is material, and discharges a surety or other party not consenting.2 So, the cutting off of a condition annexed to the note and written on the same paper; or the erasing of a memorandum that the interest has been paid; 205 or the cutting off of a statement of account which formed the consideration of the note written below it.206 A material

204

203

199 Although paid in accordance with the memorandum, Nickerson v. Swett, 135 Mass. 514.

200 Cushing v. Field, 70 Me. 50.

201 Bucklen v. Huff. 53 Ind. 474.

202 E. g. directing credit of proceeds to the drawer. Hubbard v. Williamson, 27 N. C. 397. So, an erasure of the word "renewal," Hall v. Hale, 8 Conn. 336; or an indorsement of a payment afterwards applied to another debt, Kimball v. Lamson, 2 Vt. 138.

203 Warren v. Fant, 79 Ky. 1; e. g. a memorandum of payment in excess of the note, Johnston v. May, 76 Ind. 293; or a place of payment, Woodworth v. Bank, 19 Johns. (N. Y.) 391, reversing 18 Johns. (N. Y.) 315; or a provision for payment in installments, Bay v. Shrader, 50 Miss. 326; or payment of interest. Sanders v. Bagwell, 32 S. C. 238, 10 S. E. 946; Id., 37 S. C. 145, 15 S. E. 714. and 16 S. E. 770; or payment of interest annually, Warrington v. Early, 23 Law J. Q. B. 47; or a trustee's certificate required by the terms of a bond. Maas v. Railway Co., 83 N. Y. 223, affirming 11 Hun (N. Y.) 8. But not a memorandum as to payment of interest signed by one joint maker, and intended (and held) to be binding on him only. Littlefield v. Coombs, 71 Me. 110.

204 Davis v. Henry, 13 Neb. 497, 14 N. W. 523; e. g. that it was to be pail out of certain profits, Benedict v. Cowden, 49 N. Y. 396; or might be paid partly in stock in one year, or all cash in two years, Wheelock v. Freeman, 13 Pick. (Mass.) 165; or was not to be collected until taken up by A., who had received funds from the maker for the purpose, Johnson v. Heagan, 23 Me. 329. 205 Hert v. Oehler, 80 Ind. 83; or the erasure of the cancellation stamp, with

a fraudulent reissue of the paper. District of Columbia v. Cornell, 130 U. S. 655, 9 Sup. Ct. 694. This is not so, however, as to such marks stamped on a note by mistake. Whitlock v. Manciet, 10 Or. 166.

206 Benjamin v. McConnel, 9 Ill. 536.

alteration in a contract will, in like manner, discharge a note given as collateral security.207 And a note secured by collateral mortgage will be discharged by a material alteration of the mortgage.208

Alteration of Seal-Attestation.

§ 1761. It is a material alteration to add a seal to a note. 20,9 And if one maker adds a seal to his signature after execution and in the absence of the other makers, it will render the note void as to them.210 So, if one signs a blank note with the intention of becoming a surety, and delivers it to the principal with that intention, and he adds a seal to both signatures, he will discharge the surety.21 But if a seal is added by the maker's agent without authority, under a mistake, it will be ineffectual and immaterial.212 The destruction

or obliteration of a seal is also a material alteration.213

So, if signatures of persons who were not present at the signing of a note are added as attesting witnesses, it will render the note void. 214 And it will be a material alteration to cut off the name of genuine attesting witnesses.215 But many cases hold that a note is not affected by adding attesting witnesses afterwards, if it is done without fraud.2 So, where an attorney, who witnessed the signature, afterwards wrote the word "witness," but neglected to sign

216

207 Brigham v. Wentworth, 11 Cush. (Mass.) 123.

208 Williams v. Barrett, 52 Iowa, 637, 3 N. W. 690. But see, contra, Kime v. Jesse, 52 Neb. 606, 72 N. W. 1050.

209 Morrison v. Welty, 18 Md. 169; Maas v. Railway Co., 83 N. Y. 223; Vaughan v. Fowler, 14 S. C. 355. So, if added to a guaranty, Davidson v. Cooper, 11 Mees. & W. 778, 13 Mees. & W. 343. And see § 70, supra. But not where private seals are abolished by statute. (Tenn.) 124; TENNESSEE (Shannon's Code, § 3213). 210 Biery v. Haines, 5 Whart. (Pa.) 563.

211 Smith v. Carder, 33 Ark. 709.

212 Fullerton v. Sturges, 4 Ohio St. 529.

Jordan v. Jordan, 10 Lea

213 Porter v. Doby, 2 Rich. Eq. (S. C.) 49; Piercy's Heirs v. Piercy, 5 W. Va. 199.

214 Marshall v. Gougler, 10 Serg. & R. (Pa.) 164; Brackett v. Mountfort, 11 Me. 115; Homer v. Wallis, 11 Mass. 309. So of a bond. Adams v. Frye, 3 Mete. (Mass.) 103.

215 Sharpe v. Bagwell, 16 N. C. 115.

216 Eddy v. Bond, 19 Me. 461; Thornton v. Appleton, 29 Me. 298; e. g. if subsequently added by one who saw the note signed, Milbery v. Storer, 75 Me.