Farmer v. Rand , 14 Me. 225 ( 1837 )

The action was continued, for advisement, and the opinion of the Court afterwards drawn up by

Weston C. J.

The authorities are very clear, that if a notes or other instrument be altered in a material part, without the consent of the party to be affected by it, it is void. Masters v. Miller, 4 T. R. 320; Powell v. Divett, 15 East, 29; Hatch et al. v. Hatch et al. 9 Mass. R. 311; Homer v. Wallis, 11 Mass. R. 309. Cowie et al. v. Halsall, 4 Barn. & Ald. 197; Wheelock v. Freeman, 13 Pick. 165; Clawson v. Dustin, 2 Southard, 821.

The case finds, that after the note was made and indorsed as it now- is, with the exception of the indorsement of “ C. C. Tobie to E. P. Clark,” the waiver of demand and notice was written over the signatures of all the indorsers, by Sewall, the second indorser, without the knowledge or consent of the defendant. If this waiver does, as the instrument stands, apply to the defendant, it is a material alteration, which discharges him. His contract made him liable upon demand and notice; by the alteration, he was liable without either. Suppose the indorsers had all assented to the waiver, in what terms could their assent be more intelligibly expressed. They are severally bound by their respective indorsements, but they might all agree to waive demand and notice; and such agreement would be taken distributively, and applied to each. “We waive,” is equivalent to the words, “ we severally waive,” as the contract of each, was several upon his indorsement.

Waiver of demand and notice is not so unusual, as justly to excite a suspicion, that its insertion was a fraudulent alteration. The signatures of all following the waiver, is, we doubt not, prima facie evidence against each, that he assented to it. Sewall certainly cannot be understood, from the terms used, to have intended to confine the waiver to himself; nor is there reason to believe, that the plaintiff, who discounted the note, received it with that limitation.

The jury were correctly instructed, that Sewall could not, by what he had written, bind the others who had not assented; and that it was notin his power, without authority, to alter their liability. And that is true of all unauthorized alterations of instruments, which yet however, if material, destroy their legal obligation. After the alteration, the defendant was subjected to the hazard of being charged, without demand or notice; for such is apparently his undertaking, aside from the counter proof, by him introduced. In Cowie v. Halsall, the holder altered a general acceptance of a bill of exchange, by subjoining a certain house, as the place of payment. This was held such a material alteration, as discharged the acceptor. It subjected him to the hazard of being sued and arrested, without notice. The acceptor there had máde himself liable, as such, to pay absolutely. Here the defendant had undertaken conditionally ; but the alteration dispensed with the condition, and converted his promise into an absolute guaranty. And in our opinion, the Judge, who presided at the trial, should have instructed the jury, that the alteration was material, and the defendant discharged. The exceptions are accordingly sustained, the verdict set aside, and a new trial granted.