Sheridan v. Carpenter , 61 Me. 83 ( 1872 )

AppletoN, C. J.

Upon the note, as originally signed, the maker, Hull, was personally liable. Sturdivant v. Hull, 59 Maine, 172. .

The note, while in the hands of the indorsee, was allowed, witly' his consent, by the maker. But the presiding justice found that such consent was obtained by the fraud of the maker. It seems that the holder of a bill cancelled by mistake can recover against prior indorsers. So, if the cashier of a bank, through mistake, cancel a note due to the bank, it does not affect the right of the bank to recover. 2'Parsons on Notes and Bills, 564. So, if the alteration were fraudulently made, the party committing such fraud will not be permitted to take advantage of it to the injury of the holder.

But the alteration of a note by the maker, after its indorsement, if material, and without the consent of the indorse^, discharges him. Waterman v. Vose, 43 Maine, 504.

The alteration in this case was material. As the note was, when indorsed, the maker was personally liable. The note as altered was signed by John T. Hull, treasurer for St. Paul’s Parish, duly authorized. The meaning of the parties is to be gathered from the note itself. The note is signed by the treasurer, for St. Paul’s Parish. To do this, he was duly authorized. The parish must be bound by the act of its treasurer, which was duly authorized and which was for the parish. Signing for the parish, he contracts in their behalf. In Morell v. Codding, 4 Allen, 403, the note was signed by certain individuals without their describing themselves as committee, or that their signature was for the Baptist Church in Lee. The signers in the body of the note say “ we the prudential committee for and in behalf of the Baptist church in Lee, agree to pay,” etc. “ We are brought to the single inquiry,” says Dewey, J., “whether the words ‘for and in behalf of the Baptist church in Lee,’ found in the body of the note, change its character. Had these words immediately preceded or followed the names of the signers, with the ‘ by ’ or ‘ for,’ it would have been the promise of the Baptist church in Lee.” In the present case the altered note is signed “ for St. Paul’s Parish,” and so to sign the treasurer was “ duly authorized.” The signing binds the parish.

The alteration, being material and without the knowledge or consent of the indorser, he is absolved from liability. As indorser, he paid the amount for which he was liable in entire ignorance of facts operating as his discharge. The money in the present case was paid under a mistake of facts and can be recovered back, for the plaintiff was in no fault. Norton v. Marden, 15 Maine, 45. The finding of the facts by the justice presiding is conclusive on the parties.

It is not necessary to consider or discuss the sixth ruling of the justice presiding, inasmuch as the counsel for the defendant has taken no exception thereto.

This is not the case of a rescisión of a contract. It is simply to recover money paid under a mistake of facts and of legal right. It was enough that the plaintiff offered to return the note of Hull at the time of the trial. Exceptions overruled.

Cutting, DicKeesoN, Bakeows, and DaNfokth, JJ., concurred.