Ogle v. Graham

The opinion of the Court was delivered by RogeRS, J. Giving the testimony of the defendant on the plea of non est factum, the whole force to which it is entitled, and it [134] amounts to this: Alexander Ogle agreed to become the bail of Adam Johnston, for a sum not exceeding $400. -Ogle drew a note for that sum, with a blank for the time when it was to be made payable, and executed it in the presence of a witness. The note was put into the hands of Johnston, who, not having use for so much money, altered the sum of $400 to $323, and filled the blank with the words, “the fii’st of December next.” The note was also executed by him in the presence of a witness, but in the absence of Ogle, and then delivered to Graham, who advanced him the money. There is no pretenee to say that Graham made any alteration in the note, or that any alteration was made by any .other person, after the delivery. It is contended, that this is not the deed of Ogle. We are of opinion that it is his deed. The facts justify the jury in -believing, that Johnston was the agent of Ogle, and as such, authorized to make the alteration, and fill the blank. It became his deed from the time .of the delivery by his agent, and not when it was executed and handed over to Johnston. Graham is not chargeable with any thing improper in the transaction ; and if the alteration had been made to the prejudice of Ogle, which this manifestly was not, it would he unjust that Graham should be injured. The loss, if any, should rather fall on Ogle, who puts it in the power of Johnston to impose upon a person, who for aught that appears, was free from blame. This principle has already received the sanction of the Supreme Court in two adjudged cases. Sigfried v. Levan, 6 Serg. & Rawle, 308. Wiley et al. v. Moore et al. 17 Serg. & Rawle, 438. The objection that the note was signed in the presence of but one of two subscribing witnesses, and not in the presence of each other, is destitute of any weight whatever. Judgment affirmed»