Marsh v. Griffin

Rothrock, J. i. promissory TlOtGS I cll'tOTRttou: surety, Plaintiff claims that Townsend’s defense is merely technical, and that he should be held to the amount of the notes as they were when he signed them. That the alteration is material admits of no question. What, then, are the rights of the parties? Townsend was merely a o J. «/ surety. He signed the notes and delivered them to Griffin to deliver to Marsh, and in Townsend’s absence, and without his authority or consent, the alterations were made. Marsh, refused to receive the notes without such alteration, and Griffin said “I can put it in and it will be all right.” Marsh supposed it was legal and that Griffin was authorized in law so to do. Under this state of facts we have no hesitation in holding that there never was any .liability against Townsend on these notes. There was no delivery as to him. Delivery is more than the mere manual act of passing over the instrument. It requires the assent of the mind as well. It is not material to inquire what Townsend would have done in case he had been requested to make the notes with interest payable annually. We may suppose that he would have assented thereto. But he did not; the notes were refused without this, the alteration was made, and it is not a question whether he was disehai’ged from liability, for his liability never attached. This case is distinguished from Murray v. Graham, 29 Iowa, 520. In that case the alteration was made after delivery and after liability attached, and this court, under the peculiar circumstances of the case, held that as the holder was not responsible for the alteration the note was not rendered void, under the well settled rule that a material alteration made in a valid and binding instrument by accident, mistake, or the act of a [406] stranger, will not destroy or invalidate the instrument. In some cases it is held that, notwithstanding the alteration, the holder can recover for the original consideration for the note. In this case no consideration moved from Marsh to Townsend, for Townsend was a surety. 2___. -• We are clearly of the opinion that no liability attached as against Townsend, and that the alteration was such that even if made after delivery and acceptance by Marsh, with his consent and at his instance, it would discharge Townsend from all liability, he being a surety. Parsons on Notes and Bills, vol. 2, p. 549; Wood v. Steele, 6 Wallace, 80. Affirmed.