Boalt v. Brown

Scott, J. Do the' facts of this case, as shown by the record, make a case of contract between Brown, the surety, and Hurlbut, the payee of the note ? Or, in other words, was there a valid signing and delivery of the note, in any form, by Brown ? It is clear that the note, in the form in which it was signed by Brown, in pencil, was never delivered to the payee. He declined to accept it in this form; and, at his instance, the words “interest to be paid annually” were added to it, before delivery, in the absence of Brown, and without his knowledge or assent. Foster had no express authority from Brown to. modify the terms of the instrument, nor do the circumstances show an implied authority. For it <is not the case of the filling up of a blank, with words necessary to give effect to the instrument, but of the addition of further terms to a perfect instrument. And this addition materially changed the rights and obligations of the parties; for it gave the payee the right to demand and collect interest annually, without any demand for the principal; while, without the clause thus added, interest could only have been collected with the principal, and neither without ten days’ previous notice. The delivery of the note, in its altered form, by Foster, and its acceptance by Hurlbut, and his delivery to Foster of the money agreed to be loaned, perfected a contract [371] between the parties to the transaction. But Brown was no party to this contract. He had never assented to its terms. And Hurlhut knew that the alteration of the note had been made at his own instance, without Brown’s knowledge, and without asking for his consent. The case, then, so far, stands thus: Brown had assented to, signed and authorized the delivery of one note; and Hurlbut, declining to accept it, did accept another, which he knew Brown had never assented to, had never signed, and had never seen. In all this there is evidently no contract; for the parties, Brown and Hurlbut, did not mutually assent to the same terms. Brown’s note was never delivered, and the- note which was delivered was not Brown’s. But was the assent of Brown to the terms of the altered note., subsequently given, by the act of “ inking over ” his pencil signature ? It is certain that by this act, Brown did not intend to express any such assent — for he was, at the time, wholly ignorant that any change had been made in its terms, since his signature had been affixed to it, in pencil. Neither Foster nor Hurlbut, though both were present, informed him of the alteration, which they had made without his knowledge. He was not asked by Hurlbut to become a party to a note, to which he was then a stranger, but to give durability to his pencil signature, previously affixed, by tracing it over with ink ; and the reason assigned for the request was, that the signature, being in pencil, might wear off. This he had promised to do, when he first signed the instrument in pencil, and his intentions, in the fulfillment of his promise, could not ha,ve had any reference to other promises made by Foster of which he had no knowledge. Hurlbut asked him to perform merely what he had himself promised to do, without communicating to him the fact that Foster had promised that he should do more. It is claimed, however, that Brown must be held to have assented to the terms of the altered note, although, in fact, he intended no such assent, because, having opportunity to read the note, and discover the alteration, it was his own. negligence that he did not do so, before blacking over his [372] signature with ink. Hurlbut had asked him “ to ink over his signature to that note.” And Brown, upon taking the note to the desk for that purpose, saw that it was in Foster’s handwriting, and that his own genuine pencil signature was affixed to it, and, without looking farther, he proceeded to the blackening of the signature. Was it his duty to suspect that Hurlbut had altered its terms, or procured them to be altered, without his knowledge, after the note had been signed by him? Might he not assume that Hurlbut had not, either through gross ignorance, or disregard of his rights, permitted such an interference with them? And that the note which Hurlbut handed to him, and represented to be “ that note” was the same one which he had previously read and signed, and not another ? Hurlbut, at least, has no right to complain, that Brown confided in him as a man of ordinary intelligence, and common honesty. And the character of the instrument sued upon is such that Hurlbut’s assignee simply stands in his shoes. It is clear that the terms of the altered note were never assented to by the surety, Brown; nor is he shown to have said or done anything which would justify the payee, Hurlbut, in presuming such asseiit. In the absence of such assent there is no contract between the parties. And this difficulty can not be obviated by the facts that the alteration was not made with intent to defraud Brown, and that Hurlbut when he accepted the note, with full, knowledge of the facts, supposed, without reason, that it was good and valid. Judgment of the district court affirmed. Sutliee', C. J., and Peck, GholsoN and Brinkenhoeí , JJ., concurred.