Pelton v. Prescott

Wright, J. — To the plaintiff’s petition, which is upon a promissory tíote, one of the defendants answered, that since the signing of the same, it had been altered without his knowledge or consent, as follows: the date from December 20, 1855, to February 20,1856, and the amount from $400 to $468. On the trial, it was shown that these alterations had been made by plaintiff, after the execution and delivery of the note without defendant’s knowledge, who signed the same as surety. An instruction was asked to the effect, that if the note was signed by the defendant as surety, and if after this, the payee altered the same in the particulars above specified, without the surety’s knowledge, then the surety was discharged, although he after-wards assented, .unless such subsequent assent was founded upon some new condition. This was refused, and the refusal is now assigned as error. The record does not profess to disclose all the testimony, [569] .and we are simply asked to determine whether a new consideration was necessary to support the subsequent assent of the surety to the alterations shown to have been made by the payee in the note. And this point we think was ruled correctly by the court below. If the alterations had been made with his knowledge and consent, it is very clear that the note would not have been void. (Grimstead v. Briggs, 4 Iowa, 559.) Nor is the rule different where the assent is subsequently given. Thus, suppose the alteration is made to correct a mistake, (Chitty on Bills, 207,) no new consideration is necessary to support the assent afterwards given. And for anything that appears, these changes were made between the payee and the principal to correct a mistake, all of which was subsequently ratified and concurred in by the surety. "What would amount to a ratification is another question, not now presented for our consideration. It did arise in Sands v. The People, 3 Gil., 327; cited by appellants, but that case has no application in this. "And so we may remark that Wheelock v. Freeman, 13 Pick., 165, decides nothing bearing upon this question. There the only point was whether the cutting off the memorandum attached to the notes by payee, was a material alteration. In this case, the materiality of the alterations is not denied. And the same remark in substance applies to Woodworth v. Bank of America, 19 John., 391. For there, as applicable, ever so remotely to the point under discussion, it is only decided that every alteration of a note by the maker, in respect to the place of payment, or any alteration of the contract of the indorser, in a part which may in any event become material without his consent, discharges his liability. But the instruction in this case implies assent. Nor do the cases of Newell v. Mayberry, 2 Leigh, 250; Mills v. Starr, 2 Bailey, 359; Stevens v. Graham, 7 S. & R, 508; Bowers v. Jewell, 2 N. H., 543, have any greater pertinency to the question here involved. Upon this point, [570] however, see Speake v. United States, 9 Oranch, 98; Wooley v. Constant, 4 John., 54; Kirwin's Case, 8 Cow., 118. Affirmed.