Pease v. Barnett

HaediN, J.: Upon the trial it appeared that the bond in suit was given for the debt of Dr. Carpenter, and that the defendant was not originally liable therefor. In order to bind her to its payment, the words evincing her intention to charge and bind her separate estate with the payment of the bond, upon which she was to be made a surety, were essential and material to its validity as against her. Therefore, if the clause charging her separate estate was inserted after the execution of the bond, it was a material alteration, and such an alteration as to avoid the instrument as to her. (Paine v. Jones, 76 N. Y., 274; affirming S. C., 14 Hun, 580; Reeves v. Pierson, 23 Hun, 186; Kinney v. Schmidt, 5 Weekly Digest, 519.) Whether the words which rendered the female obligor liable upon the bond, and charged her separate estate with the payment thereof, were inserted before or after execution of the bond by her, was a question of fact which should have been submitted to the jury. It is argued that Fuller, the attorney, who prepared the draught of the bond, and who brought this action, and Pease, the plaintiff, established the fact that the words were inserted before the execution and delivery of the bond. If their testimony was accepted as true, the argument would rest upon a safe foundation. Before this testimony can be a'ccepted as true, the same must be submitted to a jury. (Elwood v. Western U. Tel. Co., 45 N. Y., 553; Kavanagh v. Wilson, 70 id., 177; Gildersleeve v. Landon, 73 id., 609; Koehler v. Adler, 78 id., 287; Wallace v. Marks, 13 Weekly Digest, 400.) When the bond was produced upon the trial it bore upon its face evidence of an alteration, as we" saw when it was produced to us upon the argument. Such indications upon the bond of a change after it was originally prepared, in a material part of the bond, called upon the plaintiff [380] to explain them, and establish, by satisfactory evidence, that the alteration or addition was made before the bond was signed by Mrs. Carpenter. After such explanations were in evidence, it was for a jury to say whether they were satisfactory.' The question of fact should have been submitted to the jury. (Van Buren v. Cockburn, 14 Barb., 122.) Motion for a new trial granted, costs to abide the event. Smith, P. J"., and Haight, <J., concurred. New trial granted, with costs to abide the event.