3

5

with the date or the parties intended;' inserting the word "and" between the signatures of two parties to a note; adding the residences of the indorsers after their names; erasing the words "trustees, etc."; obtaining by the principal of the signature of a surety to a promissory note before delivery to the payee; a memorandum made on the back of a note by the holder, in pursuance of an agreement with the maker, but without the knowledge of a surety, to the effect that the rate of interest after a specified day will be less than that provided in the note; the addition of the word "annually" to the interest clause of note payable in less than two years; the indorsement on the back of a note of an agreement for extension; a payee's writing on the face of the note before maturity an extension to a later day certain. Where affixing the name of an attesting witness to a promissory note does not change its legal effect, it is not a material alteration.10

8

12

11

§ 2477. In Insurance Policies. In policies of insurance these have been held material alterations, viz.: Adding a new or more specific object of insurance; altering the port of destination. But where a policy of insurance on a voyage was made with the condition "to stay at any place to sell, barter, load, and unload goods, etc.," and the insured afterwards added the words "and to trade," it was held an immaterial alteration." A policy

1 Ames v. Colburn, 11 Gray, 390; 71 Am. Dec. 723; Cole v. Hills, 44 N. H. 227; Duker v. Franz, 7 Bush, 273; 3 Am. Rep. 314; Derby v. Thrall, 44 Vt. 413; 8 Am. Rep. 389.

Martin v. Good, 14 Md. 398; 74 Am. Dec. 545.

3 Struthers v. Kendall, 41 Pa. St. 214; 80 Am. Dec. 610.

Hayes v. Matthews, 63 Ind. 412; 30 Am. Rep. 226; Burlingame v. Brewster, 79 Ill. 515; 22 Am. Rep. 177.

Ward v. Hackett, 30 Minn. 150; 44 Am. Rep. 187.

Cambridge Savings Bank v. Hyde, 131 Mass. 77; 41 Am. Rep. 193.

Leonard v. Phillips, 39 Mich. 182; 33 Am. Rep. 370.

8 Moore v. Macon Savings Bank, 22 Mo. App. 684.

Drexler v. Smith, 30 Fed. Rep. 754. 10 Fuller v. Green, 64 Wis. 159; 54 Am. Rep. 600; Church v. Fowle, 142 Mass. 12.

11 Leake on Contracts, 808.

12 Campbell v. Christie, 2 Stark. 64. 13 Sanderson v. Symonds, 1 Ball & B. 426.

of insurance and indorsements thereon, constituting a contract of insurance with the assured, will not be avoided by even a material alteration of a contract between the company and another party indorsed on the same policy.1

§ 2478. Filling Blanks in Instruments - Negligence of Maker. Where a person, intending to enter into an obligation, signs the paper wholly in blank, or blank in certain particulars, he impliedly gives authority to the holder to fill the blanks in accordance with the general character of the instrument. Where the date in a bill of exchange is left blank, this gives authority to fill it. So as to the time of payment, or the place of payment. Where a note with blanks is delivered by the maker to an agent, with express authority to fill one of the blanks, or to fill them on certain conditions, there is no implied authority to fill the others, or to fill them without the happening of the conditions. But such a note is valid in the possession of a bona fide holder." Where writing is intrusted to another with blanks to be filled, he has no authority so to fill them as to vary or pervert the scope or meaning of the words previously written or printed, nor to strike out any of the written or printed words and replace them with others of a substantially different signification. It seems to be well settled that a paper intended for a

'Robinson v. Phoenix Ins. Co., 25 Iowa, 430.

* Bank v. McChord, 4 Dana, 119; Bank v. Curry, 2 Dana, 142; Page v. Morrell, 3 Abb. App. 433; Spitler v. James, 32 Ind. 202; 2 Am. Rep. 334; Van Duzen v. Howe, 21 N. Y. 531; Redlich v. Doll, 54 N. Y. 234; 13 Am. Rep. 573; Gillaspie v. Kelley, 41 Ind. 158; 13 Am. Rep. 318; Garrard v. Haddan, 67 Pa. St. 82; 5 Am. Rep. 412; Visher v. Webster, 8 Cal. 100; Angle v. Ins. Co., 92 U. S. 330; Abbott v. Rose, 62 Me. 194; 16 Am. Rep. 427; Witte v. Williams, 8 S. C. 290; 28 Am. Rep. 294; Caborn v. Nebb, 56 Ind. 96; 24 Am. Rep. 15; Johnson

Harvester Co. v. McLean, 57 Wis. 258; 46 Am. Rep. 39.

3 Mitchell v. Culver, 7 Cow. 336; Page v. Morrell, 3 Abb. App. 433. Contra, Stout v. Cloud, 5 Litt. 205.

Wilson v. Henderson, 9 Smedes & M. 375; 48 Am. Dec. 716.

Redlich v. Doll, 54 N. Y. 234; 13 Am. Rep. 573.

6 Toomer v. Rutland, 57 Ala. 379; 29 Am. Rep. 722.

7 Spitler v. James, 32 Ind. 202; 2 Am. Rep. 334; Overton v. Matthews, 35 Ark. 146; 37 Am. Rep. 9.

8 Harris v. Bank of Jacksonville, 22 Fla. 501; 1 Am. St. Rep. 201.

deed which has nothing but the signatures and the seals cannot, after its delivery, be filled up so as to make it a good deed. But where the deed is substantially made, and it is put in the hands of an agent with certain blanks left for him to fill out, it has been held in a large number of cases that the instrument is valid and binding after the blanks have been so filled.2

"If the maker of a bill, note, or check issues it in such a state that it may easily be altered [as, for instance, by filling the blank with a larger amount than was intended, etc.] without detection, he is liable to a bona fide holder who takes it in the usual course of business before maturity."

§ 2479. Presumptions as to Alterations - Burden of Proof. Alterations, erasures, and interlineations appearing on the face of writings, whether under seal or not, are presumed to have been made before their execu

1 United States v. Nelson, 2 Brock. 64; Ayres v. Harness, 1 Ohio, 173; Gilbert v. Anthony, 1 Yerg. 69; 24 Am. Dec. 439; Perminter v. McDaniel, 1 Hill (S. C.), 267; 26 Am. Dec. 179; Lockhart v. Roberts, 3 Bibb, 361; Sigfried v. Leran, 6 Serg. & R. 308; 9 Am. Dec. 427; Duncan v. Hodges, 4 McCord, 239; 17 Am. Dec. 734; Burns v. Lynde, 6 Allen, 405. But see Pierce v. Arbuckle, 22 Minn. 417, where such an instrument was sustained.

2 Duncan v. Hodges, 4 McCord, 239; 17 Am. Dec. 734; Texeira v. Evans, cited in Master v. Miller, 1 Anstr. 228; Ex parte Kerwin, 8 Cow. 118; Field v. Stagg, 52 Mo. 356; 14 Am. Rep. 435; Inhabitants of South Berwick v. Huntress, 53 Me. 89; 87 Am. Dec. 535; Van Etta v. Everson, 28 Wis. 37; 9 Am. Rep. 486; Vliet v. Camp, 13 Wis. 198; Owen v. Perry, 25 Iowa, 412; 96 Am. Dec. 49; Devin v. Himer, 29 Iowa, 299; Clark v. Allen, 34 Iowa, 190; Swartz v. Ballou, 47 Iowa, 188; 29 Am. Rep. 470; McNabe v. Young, 81 Ill. 11. Contra, Burns v. Lynde, 6 Allen, 405; Upton v. Archer,

41 Cal. 85; 10 Am. Rep. 266; Chase v. Palmer, 29 Ill. 309; Hibblewaite v. McMorine, 6 Mees. & W. 200; Ingram v. Little, 14 Ga. 173; 58 Am. Dec. 549; Harrison v. Tiernan, 4 Rand. 177; Cross v. State Bank, 5 Ark. 525; Bell v. Quick, 13 N. J. L. 312; Moore v. Bickham, 4 Binn. 1; Powell v. Sheriff of Middlesex, 3 Camp. 181; Markham v. Gonaston, 1 Croke, 626; Week v. Maillardet, 14 East, 568; Boyd v. Boyd, 2 Nott & McC. 125.

3 Brown v. Reed, 70 Pa. St. 370; 21 Am. Rep. 75; Rainbolt v. Eddy, 34 Iowa, 440; 11 Am. Rep. 152; Yocum v. Smith, 63 Ill. 321; 14 Am. Rep. 120; Hall v. Bank, 5 Dana, 258; 30 Am. Dec. 685; Leas v. Walls, 101 Pa. St. 57; 47 Am. Rep. 699; Scotland Co. Bank v. O'Connel, 23 Mo. App. 165. Contra, Washington Savings Bank v. Ekey, 51 Mo. 272; Holmes v. Trumper, 22 Mich. 427; 7 Am. Rep. 661; Knoxville National Bank v. Clarke, 51 Iowa, 264; 33 Am. Rep. 129; Greenfield Savings Bank v. Stowell, 123 Mass. 196; 25 Am. Rep. 67.

tion or completion.' But where the alteration is in a different handwriting from the rest of the instrument, or in a different ink, or is in the interest of the party setting it up, or is suspicious on its face, or the execution of the instrument is denied under oath, the burden of proof rests on the party producing the instrument to explain it to the satisfaction of the tribunal. There is no apparent alteration of paper where there is no interlineation, erasure, difference in handwriting, change of figures or words, nor any irregularity on the face of the paper calculated to arouse suspicion."

§ 2480. Recovery upon Original Consideration. If the alteration was made honestly, under a mistake of right, the plaintiff, as a rule, may recover on the original cause of action for which the instrument was given. If the alteration is not fraudulent, although the identity of the instrument may be destroyed, it will not operate to cancel the debt of which the instrument is merely evidence.5 Where a note is altered without fraudulent intention, the payee may resort to the original indebtedness, if that was independent of the note, and has not been discharged by its execution. The altered note must be produced and surrendered."

But in these cases there can be no recovery on the original consideration, viz.: 1. Where an instrument is fraudulently altered by one claiming under it; 2. Where

1 Lawson on Presumptive Evidence, rule 84, and cases cited; Wikoff's Appeal, 15 Pa. St. 281; 53 Am. Dec. 597.

2 Lawson on Presumptive Evidence, rule 85, and cases cited; Harris v. Bank of Jacksonville, 22 Fla. 501; 1 Am. St. Rep. 202.

Merrick v. Boury, 4 Ohio St. 60;
Lewis v. Schenck, 18 N. J. Eq. 459;
90 Am. Dec. 631; Matteson v. Ells-
worth, 33 Wis. 488; 14 Am. Rep. 766;
State Savings Bank v. Shaffer, 9 Neb.
1; 31 Am. Rep. 394.

7 Booth v. Powers, 56 N. Y. 22.
8 Kennedy v. Crandall, 3 Lans. 1;

3 Harris v. Bank of Jacksonville, 22 Smith v. Mace, 44 N. H. 553; Blade v.

Fla. 501; 1 Am. St. Rep. 202.

Merrick v. Boury, 4 Ohio St. 60. 5 Vogle v. Ripper, 34 Ill. 100; 95 Am. Dec. 298.

Booth v. Powers, 56 N. Y. 22;

Noland, 12 Wend. 173; 27 Am. Dec. 126; Trow v. Glen Cove Starch Co., 1 Daly, 280; Wallace v. Wallace, 8 Ill. App. 69; Newell v. Mayberry, 3 Leigh, 250; 26 Am. Dec. 261.

the alteration was honestly made, but the rights of third parties will be prejudiced if the plaintiff be permitted to withdraw from the position assumed by such alteration;1 3. Where the original consideration of the contract between the parties, upon which it is sought to recover, has been merged in the consideration of the instrument altered, in consequence of the fact that the latter was under seal.2

§ 2481. Effect of an Alteration upon Sureties. Sureties to a note or to a contract of any kind are discharged by a material alteration.'

§ 2482. Release of Principal Discharges Surety. Where two persons are respectively liable to the creditor for the same debt, one as principal and the other as surety, an absolute release of the principal discharges the debt and releases the surety. The surety is discharged by the creditor's surrender of collateral securities held for the same debt, pro tanto or entirely, according to the value of the security. The release of property of the principal on an execution against principal and surety will discharge the latter; and so as to any property of the principal in his hands. If a creditor, without the surety's consent, accepts a part of his debt from the principal's receiver, and gives a receipt for the whole, the surety is

1 Alderson v. Langdale, 3 Barn. & Adol. 660.

2 Whitmer v. Frye, 10 Mo. 348; Waring v. Smith, 2 Barb. Ch. 119; Mills v. Starr, 2 Bail. 359.

3 See cases ante as to what is a material alteration; Weir Plow Co. v. Walmsley, 110 Ind. 242; Whelan v. Boyd, 114 Pa. St. 228; Roberts v. Donovan, 70 Cal. 108.

Cragoe v. Jones, L. R. 8 Ex. 81; Webb v. Hewitt, 3 Kay & J. 438; Baird v. Rice, 1 Call, 18; 1 Am. Dec. 497; Tremper v. Hemphill, 8 Leigh, 623; 31 Am. Dec. 673; Bowers v. Cobb, 31 Fed. Rep. 678. See also Title Negotiable Instruments.

5 N. H. Sav. Bank v. Colcord, 15 N. H. 119; 41 Am. Dec. 685; Robeson v. Roberts, 20 Ind. 155; 83 Am. Dec. 308; Blydenburgh v. Bingham, 38 N. Y. 371; 98 Am. Dec. 49; Nelson v. Murch, 28 Minn. 314; Sample v. Cochran, 84 Ind. 594.

Dixon v. Ewing, 3 Ohio, 280; 17 Am. Dec. 590; Cooper v. Wilcox, 2 Dev. & B. Eq. 90; 32 Am. Dec. 695; Bank . Fordyce, 9 Pa. St. 275; 49 Am. Dec. 561; Springer v. Toothaker, 43 Me. 381; 69 Am. Dec. 66; Bank v. Matson, 26 Mo. 243; 72 Am. Dec. 208; McKenzie v. Wiley, 27 W. Va. 658.

'Baker v. Briggs, 8 Pick. 121; 19 Am. Dec. 311.