Card v. Miller

Boardman, J. The evidence of Knapp’s indorsement was sufficient to establish the fact. In any event it could only have been error to have refused to submit that question to the jury upon request by the defendant. Ko such request was specifically made by the defendant. The testimony of St. John was competent, and tended to establish Knapp’s indorsement. It was also proved by the defendant that Sprague bought the note of Knapp. All the evidence in the case went to establish the genuineness of the indorsement, and no evidence was given showing or tending to show that it was not genuine. Under such circumstances the court was justified in treating the proof as sufficient. But if not, the neglect of the defendant to request the submission of that specific question to the jury was a waiver of the objection. Bidwell v. Lament, 17 How. 357. A more serious question arises upon the alteration of the note by adding the name of Mrs. Miller, after its delivery to Knapp and without the knowledge of her son. The authorities are in conflict upon this subject. In Chappel v. Spencer, 23 Barb. 584, and in McVean v. Scott, 46 id. 379, such an alteration is held to be material, and to avoid the note as to the original maker. But in Brownell v. Winnie, 29 N. Y. 400, and McCaughey v. Smith, 27 id. 39, such an alteration has been held by the court of appeals not to be material or to affect the validity of the, note. It is true that the original maker of the note did not defend in Browell v. Winnie, and that the person making the alteration alone defended; so that the precise question was not before the court. The case of McCaughey v. Smith has been severely criticised in McVean v. Scott, p. 387, and declared to be bad law. Still, in the face of two such distinct declarations of the law of this case by the court of appeals, I do not feel at liberty to say the alteration under consideration was material. This note was a several note, and it may well be said the liability of John K. is not increased or varied by the addition of his mother’s name as an additional maker, any more than it would have been if she had guaranteed the payment of the note. Had the form of the signature, as set up in the complaint, to wit, “John [638] K. Miller and Permelia Miller,” "been established upon the trial, a different question might have been raised. Because such a signature would import in law a joint and not a several liability. But the case shows only the several signatures of the two defendants, by which a several and not joint liability is created. Without attempting to review the authorities, I feel bound to recognize and follow the cases cited in the court of appeals. The motion for a new trial is therefore denied, and judgment ordered for the plaintiff upon the verdict, with costs. Judgment accordingly. Hote. —In Wallace v. Jewell, 21 Ohio St. 163; 8 Am. Rep. 48, the Supreme Court of Ohio held that the addition of the name of another as maker to a note in the form “ I promise to pay,” etc., was a material alteration. See oases therein cited; also, to the same effect, Bowers v. Briggs, 30 Ind. 139.—Rep.