Fuller v. Green

Taylok, J. After a careful consideration of the authorities and the reasons for holding, that alternations of written contracts, after they are executed, destroy such contracts as to parties not assenting to such alterations, we are of the — 165 — opinion that tbe instruction excepted to was erroneous and should not have been given. The old rule of law in England that any alteration, whether material or immaterial, and whether made by a party interested in the contract or by a stranger, rendered the contract void, was long since abandoned; and the reasonable rule has now become firmly established that an alteration of a contract which will render .it void must be made by a party thereto or with his knowledge or consent; and, further, the alteration must'be material; that is, the alteration must in some way change the legal effect thereof as between the parties thereto. The insertion or addition of words in or to a contract, or the erasing of words therefrom, which do not change the legal effect thereof in any respect, does not render the contract void, and is an immaterial alteration. Williams v. Starr, 5 Wis. 534; Schwalm v. McIntyre, 17 Wis. 240; Matteson v. Ellsworth, 33 Wis. 488; North v. Henneberry, 44 Wis. 306, 319, 320; Krouskop v. Shontz, 51 Wis. 204, 206; Palmer v. Largent, 5 Neb. 223; Aldous v. Cornwall, 9 Best & S. 607; Marson v. Petit, 1 Camp. 82; Trapp v. Spearman, 3 Esp. 57; Sanderson v. Symonds, 1 Brod. & B. 426; S. C. 4 Moore, 42; Catton v. Simpson, 8 Ad. & El. 136; Gardner v. Walsh, 5 El. & Bl. 83; Truett v. Wainwright, 4 Gilman, 411; 2 Parsons on Cont. (6th ed.), 718-720; Granite R. Co. v. Bacon, 15 Pick. 239; Langdon v. Paul, 20 Vt. 217; Huntington v. Finch, 3 Ohio St. 445; Nichols v. Johnson, 10 Conn. 192; Humphreys v. Crane, 5 Cal. 173. The affixing of the name of Fredericks as an attesting witness to the note in question does not change the liability of the maker thereof in any respect. It has no effect in extending his liability under the statute of limitations, nor does it under our laws facilitate or interfere in any way with its proof. Under our law the production of the note proves its execution, unless the signature be first denied — 166 — under oath, by the maker. When there is no dispute as to the genuineness of the maker’s signature, and therefore no necessity for the person claiming under it making proof of its execution, the fact that the note has or has not an attesting witness is wholly immaterial. The possibility that the maker of the note and the attesting witness might both die before an action was brought upon it, and in such case the execution of the note might be proved by proving the handwriting of the attesting witness, is too remote and uncertain to be invoked for the purpose of basing a claim that the addition of such attesting witness is a material alteration of the contract. It seems to me the fact that a pei-son who affixes his name as an attesting witness to a contract, when he has not witnessed its execution, cannot, even in the matter of proof of the instrument, be of any effect under any circumstances; for when it is made to appear that the name was so affixed, or, in other words, when the claimed alteration is proved, the party whose name has been affixed as an attesting witness is no longer such witness, and consequently the proof of his handwriting would be no proof of the execution of the contract. . If the alteration be wholly immaterial, and in no way changes the liability of the maker of the note, it seems to us wholly immaterial with what intent such alteration was in fact made. The cases cited by the learned counsel for the respondent from Massachusetts and Maine sustaining the correctness of the instruction — viz., Brackett v. Mountfort, 11 Me. 115; Thornton v. Appleton, 29 Me. 298; Homer v. Wallis, 11 Mass. 310; and Smith v. Dunham, 8 Pick. 246 — were all cases where the name of an attesting witness had been added to a promissory note. In these states, when a note is attested by a witness, it extends the liability of the maker under the statute of limitations, and so in fact changes to some extent the nature of the contract and — 167 — enlarges its obligation in the law. In this state there is no such law, and consequently no enlargement of the obligation of the contract by reason of the fact that the note appears to be witnessed. The case of Adams v. Frye, 3 Met. 103, was an action upon a sealed bond. The case of Marshall v. Gougler, 10 Serg. & R. 164, was an action on a sealed note. Both cases seem to sustain the contention of the respondent and the correctness of the instruction given by the circuit court judge, and may have some weight in those states where the mere production of the note or bond does not prove its execution, and the adding the name of an attesting witness might, therefore, under some circumstances, be an advantage to the holder of the note or bond, and a disadvantage to the maker. Under the laws of this state, we can see no advantage to be gained by placing the name of an attesting witness to a note in favor of the holder of the note, and no disadvantage to the maker, and can conceive of no reason, therefore, why it should render the note void. We cannot consider the fact that it is possible that an action might be brought upon this note in a state where the law enlarges the statute of limitations because the note is signed by an attesting witness. We can only judge of the materiality of the claimed alteration of the note by the application of our own laws. If the alteration be immaterial under the laws of this state, it cannot affect the rights of the parties in our courts because, in an action brought upon the note in some other state, the question of the alleged alteration might be adjudged a material alteration under the laws of that state,, and possibly a different decision might be had. "With that question this court has no concern. The instructions of the learned circuit judge upon the second ground of defense were correct. The evidence tends strongly to show that the pretended — 168 — claim against the defendant was a fraudulent one, having no element of justice or right in it. We think, upon the evidence, Bice, the man to whom the note was given, must be presumed to have known the fraudulent nature of the claim he made on the defendant, and that the giving of the note under the circumstances was not a compromise of an honest claim on the part of Bice, so as to bind him, but that he may set up the fraudulent nature of the original claim in an action upon the note by Bice, or any other person who is not a bona, fide holder of the note for value before due. Had the defendant, after giving the note, taken possession of the two casks of paint, there would be strong ground for holding that he had thereby waived any right to set up the original fraud as a defense to the note; but the evidence shows that he did not do so. He may therefore avoid the note on the ground that the acts of Bice in obtaining it were a continuation of the original fraud of the man to whom the defendant gave the order. The transaction cannot be sustained on the theory that the claimed settlement between Bice and the defendant was the compromise of an honest claim made by Bice. See Kercheval v. Doty, 31 Wis. 476, 486. In this case Chief Justice DixoN says: “ A mere false claim,— a sham one, — set up without, any colorable pretense or plausible foundation, might not come within the terms or definition of a compromise, and might not sustain it. Characterized by bad faith, the preferring of such a claim would itself be a fraud, and concessions made or rights yielded on the strength of it would not be lost nor the settlement be a bar.” Again, he says: “ Fraud, it is said, will vitiate everything, and, no doubt, if shown, would vitiate a settlement.” Wharton, in his work on the Law of Contracts, in speaking of the sufficiency of a forbearance to sue as a consideration for a promise to pay the claim, or some part thereof, says: “ The fact that the suit is not well founded makes no difference if it has a show — 169 — of title, though it is otherwise in cases of fraud and in cases where the claim to be forborne is utterly destitute of support.” 1 Wharton on Cont. § 532, and note. See, also, on this point, Kidder v. Blake, 45 N. H. 530; Pitkin v. Noyes, 48 N. H. 294, 304; Nelson v. Serle, 4 Mees. & W. 795. There was sufficient proof given on the part of the defendant of the fraudulent nature of the claim made against him upon the note to go to the jury upon that question, and so to shift the burden of proof upon the plaintiff to show that he was a Iona fide purchaser of the note for value before it became due; and, in the absence of any proof on his part on that point, if the jury found the fraud, the verdict would necessarily be for the defendant. -Because the learned circuit judge misdirected the jury as to the effect of placing the name of Fredericks on the note as an attesting witness, and it is therefore impossible for this court to determine whether the verdict of the jury was based upon the ground that the note was void for that reason or because of the fraud in the transaction between the defendant and Eice, the payee of the note, the judgment must be reversed. By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.