Swigart v. Weare

Waterman, J. In this case it appears that James Springer, having made his promissory note payable to the order of Charles F. Swigart, the defendants below, John F. Weare and Harvey S. Clark, together with John A. Cook, indorsed the same in blank, and the note thus indorsed was delivered to the plaintiff, who thereupon, after such delivery and without the knowledge of Weare or Clark, wrote above their signatures as follows: “For value received we, or either of us, guarantee the payment of the within note at maturity, including attorney’s fees for the collection, if any be made.” Hpon the trial the plaintiff struck out of this writing the words, “including attorney’s fees for the collection, if any be made,” and amended his declaration to correspond with such change of the guaranty. The court found the issues for the defendants, and' plaintiff appeals. That the plaintiff was authorized to write over the signature of the defendants a> guaranty of the payment of the note, is not disputed. On the other hand, it is not contended that there was any authority for including in the guaranty the words as to attorney’s fees, stricken out upon the trial. 0 Appellees insist that this is a case of material alteration of a written instrument by a party thereto; and many cases are cited to the effect that the party making such alteration can not recover upon the writing. We do not regard this as a case of an alteration of a written instrument. It is rather the case of a person misapprehending the contract which, in the absence of evidence other than that appearing from signatures of third persons upon the back of a promissory note, the law. presumes was made by them, and having reduced such mis-' apprehension to writing, afterward changing the writing to correspond with the presumption of law. Defendants having written their names upon the back of the note, in the absence of other evidence as to their undertaking, the law presumes that they intended to guarantee the payment of the note; and the plaintiff in such case is authorized to write over their signature a guaranty; this might have been done upon the trial; plaintiff might then have stricken out all that he had previously written and in its stead have put what was left after he amended the writing he had before placed on the note. This is not a case in which parties have set down in writing the terms of their' contract. The instance is one in which, the signatures being made, and nothing being said or agreed as to what obligation was thereby entered into, the terms of the undertaking are determined by presumption of law. Strictly speaking there was no written contract, but merely a signing, indicating that the parties had entered into a contract. Barrows v. Love, 5 Vt. 161; Seymour & Co. v. McKey, 15 Ohio St. 515. There is no pretense that the plaintiff intended any fraud. He did not claim that the defendants had done more than to simply write their names. What, therefore, the terms of their contract were, was a matter not for him to express, but a conclusion of law. That the plaintiff, having mistaken the law and expressed the contract incorrectly, may correct this at any time, is well settled. Josselyn v. Arnes, 3 Mass. 273; Austin v. Boyd, 24 Pick. 64; Nevins et al. v. DeGrand, 15 Mass. 435; Riley v. Gerrish, 9 Cush. 104; Seymour & Co. v. McKey, 15 Ohio St. 515; Sylvester v. Downer, 20 Vt. 355-362; Croskey v. Skinner, 44 Ill. 321; White v. Alward, 35 Ill. App. 195. It is insisted that as only two of the guarantors were sued, no recovery can be had, although the undertaking was joint and several. It did not appear on the face of the declaration that any person other than those sued was liable; it was therefore incumbent on the defendants, if they wished to take advantage of the non-joinder of Cook, to have pleaded in abatement; the only plea interposed was that of the general issue; the objection as to non-joinder comes too late. Chitty on Pleadings, Vol. 1, p. 46; Cummings et al. v. The People, 50 Ill. 132. The judgment of the court below is reversed with directions to enter a judgment in accordance with this opinion. Reversed and remanded with (directions.