Neff v. Horner

The opinion of the court was delivered January 31st 1870, by Agnew, J. — It seems to be settled that a voluntary alteration of a bond, note or other instrument under seal, in a material part, to the prejudice of the obligor or maker, avoids it; unless done with the assent of the parties to be affected by it: 1 Greenleaf’s Ev. § 565; Marshall v. Gougler, 10 S. & R. 164; Barrington et al. v. Bank of Washington, 14 S. & R. 422-3; Foust v. Renno, 8 Barr 378; Henning v. Werkkeiser, Id. 518; Smith v. Weld, 2 Barr 54. Such a wilful act differs from spoliation by a stranger, or accidental alteration done through mistake, where the instrument remains effectual in law, as it was before alteration: 1 Green-leaf’s Ev. §§ 566, 568. In respect to hills, notes and other commercial paper, the rule is even more stringent, the law casting on the holder the burthen of disproving any apparent material alteration on the face of the paper: Stephens v. Graham, 7 S. & R. 505; Simpson v. Stackhouse, 9 Barr 186; Paine v. Edsell, 7 Harris 178; Miller v. Reed, 3 Casey 244. The only Pennsylvania case that seems to run against this strong current of authority is Worrell v. Gheen, 3 Wright 388, but it is plainly exceptional. The opinion declares on the general principle strongly, but makes the case an exception on the ground that the plaintiff had no hand in the alteration, and because the case being stated for the opinion of the court, they were met by no discrepancy between the allegata and probata. How far the grounds of distinction may be deemed satisfactory, it is of no importance, for it is sufficient that the case is made an exception expressly. In the present instance, however, the plaintiff, who was examined on his own behalf, admitted that Pennington, the principal in the note, made the addition in his presence. He saw him do it. He would not take the note till Pennington did so. The latter said he had authority from his sureties, but this was untrue. The alteration was not accidental, and the plaintiff, though guiltless [331] of the fraud, was foolish to accept a note he himself saw altered by the principal without being certain he had authority to bind his sureties. The alteration was material, for it added interest to the principal. It was not out of the way, so as to be no part of the note, for its position at the foot of the note, and by way of continuation, would have bound the sureties to the payment of interest, had there been authority from them to write it there. It was material in the eyes of the plaintiff, for he refused to take the note without interest added to it, and brings the suit upon it in this altered state. The note was, therefore, avoided as to the sureties, and the court erred in holding that the plaintiff could recover the principal from all the parties, disregarding his claim for the interest. It is argued that a recovery of the principal sum does no harm, for to that extent the sureties bound themselves. But the conclusive answer is that stated by Mr. Greenleaf, supra, § 565. The ground of the rule is public policy to insure the protection of the instrument from fraud and substitution. The writing goes into the hands of the party who claims its benefit, and the purpose is to take away the motive for alteration, by forfeiting the instrument on discovery of the fraud. When the sureties signed it they had a right to have it delivered unaltered to the plaintiff. He was bound to know that the alteration was rightfully done, and that the penalty of his negligence, or his wrongful act, was a loss of the security. As to the plea of non esi factum, there ought to have been no difficulty. The plea was already on the record, and it Avas the mere oversight of the clerk that it,did not appear on the judges’ trial list. Consequently, when informed of the fact the plea should have been allowed its proper effect; and if the court thought the plaintiff was taken by surprise, a juror might have been withdrawn, or such order made as would prevent injustice. But as the case was- submitted, a wrong was done to the defendant, which could be repaired only by a new trial; for the effect of disregarding the plea of non est factum, on the record, was to deprive the defendant of a defence which struck at the very marrow of the plaintiff’s case. Judgment reversed, and a venire facias de novo awarded.