Beary v. Haines

[20] The opinion of the Court was delivered by Rogers, J. — Had the name of the witness been subscribed to the note, after its execution, the alteration would have avoided it, as was held in Marshal v. Gougler, (10 Serg. & Rawle, 164.) It is a material alteration of the instrument, because, as is there said, it furnishes a different and distinct medium of proof. Nor can it affect the case, whether it be a bond, or a promissory note, or bill of exchange, for it is at least as important, to prevent the tampering with instruments of the latter description as the former. This rule is founded on a principle of policy, which renders them void without any reference to the character of the writing, or the motives of the party in the particular transaction. These principles are undisputed ; but here the indorsee shows that the note, which is joint and several, was signed at different times, and, as is very probable, at the instance of Lucas Haines, who was the principal, the other promissors being sureties. It was placed in the hands of Haines, also, to be executed, or at any rate delivered by him, and until this was done, the contract was incomplete. May we not infer an authority to Haines, to call a witness to the completion of the contract, or in other words, the contract being unexecuted that he was their agent for that purpose ? It is material to observe, that there does not appear to have been any intention to commit a fraud, nor can I perceive any testimony from which the jury could draw the conclusion, that the witness was required or intended to witness the note generally. His testimony negatives any such presumption. It discloses the fact, that he was called as a witness to the consummation of the contract, and of the signature of the principal promissor, who either signed it or acknowledged it at the time. If in a suit on a single bill it appears, that at the time of its execution, a blank was left, where the name of the payee was afterwards inserted, but it was in evidence that it was left blank, in order that the name of the payee might be inserted, it is good, upon the principle that it is one entire transaction, and not perfected until the delivery of the note to the plaintiff, and that an authority to fill the blank may be inferred. Stahl v. Berger, (10 Serg. & Rawle, 170.) So in Seigfried v. Levan, (6 S. & R. 308,) where a printed form of obligation in blank, was signed by the defendant, and attested, and the bond was afterwards filled up with the sum borrowed on it, and the name of the obligee, and the subscribing witness delivered it to the obligee, it was left to the jury to infer that he was the agent of the obligors, having their authority to deliver the deed. In the case of Stahl v. Berger, a distinction is taken between an incomplete and the formal execution of the contract. In Homer v. Wallis, (11 Mass. Rep. 312,) the Court thought it could not be an immaterial alteration, to cause the name of the person to be placed on the note as a witness, when he was in no respect a witness to any part of the transaction. [21] The note was altered after its execution, by adding the name of a subscribing witness who was not present. Hunt, Administrator of Barnes, v. Adams, (6 Mass. Rep. 519,) was the case of the addition of a word which the law would have supplied. This was held to be an immaterial alteration, and that the law will presume the assent of the promissor or obligor. An alteration as all the cases show, with the assent of the parties, does not avoid a deed or other writing, nor is it material, whether the assent be before or after the contract, or be express or implied. Where there is a reasonable presumption of the assent of the promissor or obligor, the instrument is not avoided by the alteration; and in this respect there is a great abatement of the rigour of the ancient laws, and particularly in the case of promissory notes, and bills of exchange. If the alteration or addition to the note was made with the express assent of one of the promissors and the implied assent of the others, and antedated as an authentication of its delivery, we see nothing objectionable in it. Of these facts, the jury is the proper judge. The case of Ogle v. Graham, (2 Penn. Rep. 132,) is very like the present. It decided that one who executes a note as a surety, and gives it to the principal, to be executed by him, and delivered to the payee, but who before doing so, alters the amount mentioned in the note from a greater to a less sum, cannot take advantage of such alteration. It also decided that it does not affect the validity of a note, that it was executed by one of the makers, in the presence of one witness, and by the other in the presence of another, although it purports to be executed by both in the presence of the subscribing witnesses. No case has been cited, which shows that the omission to note on the instrument, that the witness-attested the signature of one only, has been held to be fatal; and the decision just cited is an instance where the contrary doctrine has been sustained. If the co-pi-omissors are put to an inconvenience, (which can only be in the contingency of the death of the witness,) it is an inconvenience to which they have voluntarily subjected themselves. Nor can I perceive in what respect they are injured by the alteration, which, on the supposition that the note was executed by them, adds in no degree to their liability. It neither increases the amount of the note, nor does it change the parties. Judgment reversed and a venire de novo awarded.