Shiffer v. Mosier

Opinion by Mr. Justice Potter, This was an action of assumpsit in which it was sought to recover upon an article of agreement, signed by seven persons, who stipulated to make payment of a certain sum of money to one J. B. Shiffer, within a period of three years. Some time after the execution of the paper, Shiffer asked E. H. Hughes, who was familiar with the handwriting of the signers, to attest the signatures, and this he did, without the knowledge or consent of the signers. Upon the trial the court below held that the addition of the attestation was a material alteration which destroyed the validity of the instrument, and judgment of compulsory nonsuit was entered. The correctness of this position is questioned by this appeal. Counsel for appellant concede the fact of the alteration of the paper after its execution, without the knowledge or consent of the obligors, and they frankly admit that the general rule of law in Pennsylvania is, that the addition of the name of [558] a witness to the signatures of a paper, after its execution, without the. knowledge or consent of the obligors, is a material alteration, which renders the paper inadmissible in evidence. Such a rule was laid down by this court in Marshall v. Gougler, 10 S. & R. 164, and was followed in Henning v. Werkheiser, 8 Pa. 518; Foust v. Renno, 8 Pa. 378, and other cases. It is also a general principle of law that: “An altered instrument is so far vitiated that no recovery can be had on its original or altered terms. It cannot be considered as void for the unauthorized change and valid in other respects, but is void altogether:” 2 Cyc. L. & P. 182, sec. c. It is further true that: “The vitiating effect of an alteration cannot be obviated by afterward attempting to restore the instrument, as by erasing words unauthorizedly inserted, especially after an attempt to recover upon the instrument in its altered form. This rule seems especially applicable in favor of one who is subject to no liability but that created by the instrument:” 2 Cyc. L. & P. 182, sec. d. But while admitting the general rule, counsel contend that the circumstances of this case take it out of the usual order. In support of -this position, they allege that the use plaintiff, Gertrude I. Heeley, was an innocent purchaser of the agreement from the executors of the payee. But we cannot find that any evidence was offered to show any such fact. The assignment of the agreement is embodied in plaintiff's statement, and it does not show the consideration, if any, which was paid, but it does show that she was one of the heirs of J. B. Shiffer, entitled to a one-third interest in his estate, and presumably the assignment was made on account of her interest in the estate. It was made when payment under the terms of the instrument was long overdue. The agreement was not a negotiable instrument, and the assignee would therefore take it subject to any defense which could be set up against the assignor. The authorities are against the position taken by counsel for appellant. Thus, in 3 Page on Contracts (1905), sec. 1529, it is said: “A material alteration avoids the written contract. Thus a material alteration of a contract, though with the consent of the other parties thereto, re [559] leases a surety thereon. . . . Any material alteration releases a party who does not consent thereto no matter -how many other parties have consented. This is so whether the alteration is fraudulent or innocent. ... A material alteration avoids a contract not only as to the party making it, but as to an innocent transferee, such as a bona fide assignee who is not an indorsee. A negotiable instrument which has been altered materially is unenforceable; even in the hands of a bona fide holder without notice who takes it for value and before maturity.” Kountz v. Kennedy, 63 Pa. 187, is cited in justification of the claim to disregard the alteration of the paper. But Kountz v. Kennedy has not been followed in subsequent cases. In Fulmer v. Seitz, 68 Pa. 237, Justice Agnew said (p. 242): “It is supposed that the case of Kountz v. Kennedy, 63 Pa. 187, is opposed to this view, and it is cited as authority against it. That case is a very close one, and was decided doubtingly on its peculiar, circumstances. One of our number (Justice Sharswood) expressly dissented, and I gave my own assent with hesitation.” And in Craighead v. McLoney, 99 Pa. 211, Chief Justice Sharswood, after referring to Kountz v. Kennedy, said (p. 214): “My own opinion is that the courts have gone far enough in permitting writings to be tampered with.” In the cases of Hartley v. Corboy, 150 Pa. 23 (29), Gettysburg Nat. Bank v. Chisholm, 169 Pa. 564 (573), and Citizens' Nat. Bank v. Williams, 174 Pa. 66 (70), this court declined to follow Kountz v. Kennedy. In the latter case Justice Green said (p. 71): “The tendency of all our recent decisions is to hold parties more strictly responsible for alterations of any kind particularly in the case of negotiable instruments, and we do not think that the ruling in Kountz v. Kennedy should be extended a single step beyond its own peculiar facts.” The second contention of appellant, that the receipt written upon the agreement in the handwriting of J. L. Polen, one of the obligors, operated as a ratification of the altered contract, we do not consider tenable. In any event, the action of Polen would affect himself only. The offer of evidence [560] does not show whether the receipt was indorsed before or after the attestation clause was added, but if it was made afterwards it would not be sufficient to give life to a contract which had been made void by the act of the obligee. “Subsequent assent to a material change of a written instrument is a waiver of the right to rely upon the alteration as a defense to an action brought upon the instrument. But a ratification by one of several who are parties to the instrument as originally written binds him only, and not those who do not assent:” 2 Cyc. L. & P. 172. And in the same text-book it is further stated that: “In order that any acts may be construed as a ratification of an alteration, the particular act must be done with full knowledge of the alteration. . . . The party must have knowledge in fact, and it is no answer to say that he had means of knowledge:” 2 Cyc. L. & P. 175. In the present case, it does not appear that there was any offer to show knowledge of the alleged payment, upon the part of anyone but Polen. We see no merit in any of the assignments of error; they are therefore overruled, and judgment is affirmed.