White v. Johns

Berry, J. As respects the defendant Johns, (the only party upon whom summons was served,) this is an action upon a bond executed by him and one.Keithly, and written upon the back of a certain contract executed by Keithly and the plaintiffs. The condition of the bond as it is set out in the complant, and as it appeared in the instrument itself when it was put in evidence upon the trial, is as follows, viz.: “The condition of this obligation is such that, whereas, there is an unsettled account between said L. C. White & Co. and said Theodore W. Keithly, as their agent, if the above bounden Theodore W. Keithly shall pay unto the said L. C. Wh|te & Co. all moneys or indebtedness which shall be found due on'settling said account, or which shall become due said L. C. White & Co. under and pursuant to the within contract, or which shall arise therefrom, [389] whether by note, open account, indorsement or otherwise, and ■shall well and truly perform in all respects the contract on which this obligation is indorsed, executed between the said Theodore W. Keithly and said L. C. White & Co., dated this ■twenty-seventh day of August, A. D. 1873, then this obligation shall be null and void, otherwise to remain in full force and ■effect. ” Immediately after this condition, and above the signatures of the defendants, is the following: “Note. The following words inserted above before signatures affixed: “Whereas, There is an unsettled account between said L. C. 'White & Co. and said Theodore W. Keithly, as their agent, .now be found due on settling such account, or which shall.” One of the defences set up in his answer by defendant -Johns is that the bond had, without his consent, been materially altered after its execution by the insertion of the words: '“Whereas, there is an unsettled account between said L. C. White & Co. and said Theodore W. Keithly, as their agent,” and the words “be found due on settling such account, or which shall.” Although this note appears before the signatures of the makers of the bond, it is not a part of the bond proper, for it in no way enlarges, restricts, qualifies, explains, or in any manner or degree affects the meaning of that which precedes it. It is just what it purports to be, a mere note or memorandum, and is entitled to the same weight and effect as if it were written upon the back of the bond, or upon a separate paper attached to or referring to the bond. In other words, it is a simple admission, a piece of evidence. In order, then, to properly set up the alteration of the bond, it was not necessary to make any allegation with reference to the note; and as the note was valuable only as an admission — a piece of evidence — it was competent for the defendant Johns to confront it by evidence going to show that he never made it, [390] ' and to do this it was obviously unnecessary for him to plead, that he never made it. As to the matter of proof of the alteration of the bond there is. competent evidence as respects the condition of the bond (as well as the note) sufficient to support the referee’s finding1 that the alleged alterations were made- without the knowledge' or consent of the defendant. If the alterations were material, the bond, in accordance with a well settled rule of law, is void. If the alterations had the effect to enlarge the liability of the defendant Johns they were material, because they materially altered his agreement to his prejudice. That they did enlarge his liability is apparent. We very much doubt if, without the alterations, the condition of the bond extended at all to the unsettled account for, the proceeds of all machines theretofore sold by Keithly, men- 1 tioned in the sixth clause of the contract upon which the bond is indorsed. But, if it did, it is quite apparent, as is suggested by the court below, that it did not extend to the entire unsettled account between Keithly and L. C. White & Co., which, as appears from the exhibits in the case, embraced, items other than the proceeds of machines sold. The further' remark of the court below that, unless the design of the alteration was to increase the liability of the makers of the bond,, it was entirely unnecessary, would seem to be not without, force. Order denying new trial affirmed.