Brownell v. . Winnie

Mullin, J. It has been too long and too well settled to be open for discussion, that an alteration of a written contract in a material part, without the consent of the parties, discharges them from liability. This rule applies to bills and notes, as well as to all other species of contracts. It was held in England, in Gardner agt. Walch (32 E. L. & E. 162), that the addition of the name of a person to.a joint and several promissory note signed by two as makers, without the knowledge and assent of one of them, was such a material alteration as avoided the note. 'The same principle was applied in this state in Chappell agt. Spencer (23 Barb. 584 ; see Edwards on Bills, 681). In those cases, and in others which might be cited, the notes alleged to be altered were in terms joint and several. But I have found no case, and none has been cited, holding that a name added to a several note, is such a material alteration as avoids it, and upon principle I can perceive no reason why it should be so held. A note “ I promise to pay,” can never be made a joint contract, however many names may be added to it. The law presents an action against the makers as upon a joint or several contract, but the • contract itself is not changed. The liability of the first signer is the same, however many may be joined in the action with him. The note continues to be payable on the same day, at the same place, and to the same person, and for precisely the same amount, and if there are any other parts of the obligation which can be considered material in the sense that an alteration in that respect vitiates the note, I am unable to comprehend it. Permitting par *199 ties to be united in the same action with a several maker, does not change the contract. If that were so, the law of 1831, which permitted all the parties to a bill or note to be united in the same action would have been unconstitutional, as impairing the obligations of existing contracts, as then every bill or note then in existence would have been rendered void, unless actions thereon were prosecuted under the previous law. But no one supposed it was not entirely competent for the legislature to regulate the mode of enforcing such contracts, by uniting such and so many of the parties in one action as it deemed proper. But it may be said that in the law of notes and bills, the contract although in form several, yet when signed by two or more persons, it may be sued upon as a joint and several paper, is a rule of law which becomes a part of the contract, and the contract is to be construed in reference to it. This condition does not change it; it is still a several contract, and is joint only for the purposes of the remedy upon it. Again, if a several note is avoided by adding thereto the name of another as maker without the consent of the first signer, who should be permitted to avail himself of the objection, not the last signer surely, for as to him the contract only takes effect from the day of transfer, and to the amount he receives. His contract is not identical with that of the first maker, and signing by the second maker does not and cannot .vary the contract of the first (Cobb agt. Titus, 10 N. Y. 198, and cases cited). Whatever right the first maker may have to complain, the second can have none. The case of Potter agt. Colby (19 Barb. 248), decides the question under consideration in accordance with the foregoing views. But that case was overruled by Chappell agt. Spencer (cited supra). Although that case has not been itself overruled, yet tikis court in Cobb agt. Titus, came to a conclusion wholly at war with that case, and must be understood as overruling it, and the cases on which it rests. In Cobb agt. Titus, the note was made by Nile, payable to *200 Robert Titus or order, and delivered to him for a valuable consideration. Titus applied to the plaintiff to raise the money on it, who refused to let him have it unless he would get O. W. Titus to indorse or sign it as surety. O. W. Titus did sign it as security, and the plaintiff paid therefor $15 less than its face. The note was on interest. Nile and O. W. Titus were sued ; the former permitted judgment to pass against him, and the latter defended. There was judgment for the plaintiff for the amount advanced on the note by the plaintiff, and the case came to this court on appeal, and Justice Allen in his opinion, which was adopted as the opinion of the court, says : “ The note is none the less the several note of Nile, and valid as such because the defendant has subscribed his name to it as surety, and thus become collaterally liable for its payment. A difficulty might arise in treating it as a joint note, but that is obviated in this case.” Although the point does not appear to have been distinctly presented in the case of Cobb agt. Titus, that adding the name of O. W. Titus was such an alteration of the note as avoided it, yet the court could not have decided the case in favor of the validity of the note, without meeting and disposing of that question. It could not have been valid against Nile as Justice Allen . says it Avas, if the addition of the name of Titus rendered it void. The case of Cobb agt. Titus, was understood by the supreme court in Burton agt. Baker (31 Barb. 241), as holding that the addition of a maker does not vitiate the note, and such it seems to me should be the law, especially as between the holder and the last signer of the note. The judgment of the supreme court must be reversed, and that of the county court and of the justice affirmed. But as the plaintiff was only entitled to recover the money paid to him and interest, deducting therefrom all payments made by the first signer, the judgment of the justice was for too much. Instead of being for $14. Y5 damages, it should be for $14.31, and unless the plaintiff will stipulate to allow *201 this sum in reduction of the judgment, the judgment of the supreme court must be affirmed. The county court has authority under section 366 of the Code, to modify the judgment according to the justice of the case, without regard to technical errors. The general term has the same power. (Staats agt. Hudson River R. R. Co. 23 How. Pr. 463 ; Fields agt. Newal, 15 Abb. 6.) This court has the same power. (Tillou agt. Kingston M. Ins. Co. 1 Seld. 405 ; Chouteau agt. Sugden, 21 N. F. 179.) The judgment of the general term must be 'affirmed unless the plaintiff will stipulate to deduct from the-judgment of the justice the sum of $3.14 as of the day the judgment was rendered by the justice, in which event the judgment of the supreme court is reversed, and that of the justice and of the county court affirmed as modified. The following is the order of the court: “ Judgment of supreme court reversed, and judgment of county court and justice’s court affirmed with costs, provided plaintiff deducts from judgment $3.14, as of the date of justice’s judgment, otherwise judgment affirmed with costs.”