Craighead v. McLoney , 99 Pa. 211 ( 1882 )

Chief Justice Shabswood

delivered the opinion of the court, January 2d 1882.

There is a wilderness of cases in the books on the subject of the alterations of notes and other instruments of writing, through which it would require much time and labor, and great ingenuity, for any one to thread his way. Of course they are not all consistent and easily reconciled. Fortunately, it is not required of us to attempt this task in the present case. Perhaps a key to this variety and want of harmony may be found in the remark of Mr. Chief Justice Thompson, in Kountz v. Kennedy, 13 P. F. Smith 190: “ There is no subject in the books which has

occupied a much larger share of attention than questions of the alteration of writings, but, after all that has been said, each case must stand much more on its own facts than upon the rules announced in any given case.” My own opinion is, that the courts have gone far enough in permitting writings to be- tampered with.

It appears to be settled, however, that an alteration entirely immaterial, which places no responsibility on the parties, to which they were not subject before the change, does not vitiate the instrument. Its identity remains. The difficulty has been always in determining what is or what is not material. It is evident, that any tampering with the instrument which imposes upon the party a burden or a peril, which he would not else have incurred, is an injury to him, and therefore material. It is a mistake to infer that whether the pecuniary liability is increased or the time of payment changed is the test. In these respects the party may be no worse, yet his rights and remedies on the instrument may be seriously affected. Wherever this is so, it does not matter that the alteration was entirely honest, and with no fraudulent intent. This will be often found to be the case, where the note or instrument has been executed by several parties. But it may be in other instances, as where attesting witnesses have been added to an instrument after execution : Marshall v. Gougler, 10 S. & R. 164. An alteration of the date of a promissory note by the payee, whereby the time of payment is retarded, avoids the note: Stephens v. Graham, 7 S. & R. 505. We might multiply eases of this type, where the amount of the pecuniary responsibility remained unchanged. Wherever, therefore, a note or instrument is executed by two or more parties, any alteration in it, without the consent of all, renders the recourse of the party who has not assented more difficult and expensive. In the case in hand, when Craighead, if compelled to pay the note, comes to pursue his remedy against his copromisor, either for indemnity or contribution, as the case may warrant, it will not be enough to produce and prove the note. Lie must account for the alteration apparent on its face. He must show that it was made with Haines’s consent. It is clear then that the alteration was material to him. So, if Craighead had been sued in some other state, he would have to show that the note was executed in Pennsylvania, and that by the law of this state only six per cent, could be recovered upon it. In short, as Mr. Parsons has briefly and well stated it in his treatise on Promissory Notes, p. 582: “ Any alteration which changes the evidence or mode of proof is material.”

These considerations are sufficient to dispose of this case without adverting to the fact, that by the alteration one day’s additional interest was actually imposed on the defendant. It is no answer to say that this day’s interest was not demanded or received, or to plead the maxim de minimis non curat lex. In Stephen v. Graham, supra, and in Kennedy v. Lancaster County Bank, 6 Harris 347, the payment of the note was retarded by the alteration of the date only a single day.

We think, therefore, the learned court below erred in holding the alteration in this case immaterial and in so instructing the 3l«T-

It appears to us also, that McLoney was incompetent as a witness for the purpose for which he was offered. It is true the representatives of Haines were not parties, but still it is clear that his estate would ultimately be answerable, either for the whole amount if Craighead was a surety, or for his contributory share if he was only a co-promisor. McLoney cannot be a witness to fasten this responsibility on the estate of the dead man by his testimony, either directly or indirectly. Under the view we have taken of the materiality of the alteration, however, the evidence of this witness as to- the assent of Haines and the honesty of the alteration is not important.

Judgment reversed.