Presbury v. Michael

Bay, Judge, delivered the opinion of the court. There is no material difference between this case and the case of Ivory against the same defendants, decided at' the present term of this court. ~W,e there held that the insertion of the words “ bearing ten per cent, interest from maturity ” was not the filling of a blank, as the note was a perfect instrument without it; but that it was the adding of words to the end of the note, materially changing the terms of the contract, by enlarging the liability of the endorser, and that such alteration rendered the note invalid as against the endorser, he never having consented to, or ratified the same. In this case, however, several instructions were asked by plaintiff and refused, the object of which was to define the well known distinction between alterations made by parties and alterations made by strangers, which latter are styled spoliations. The court, however, did instruct the jury that if they believed from the evidence that the words relative to interest [544] were inserted in the notes by any other person than Campbell or his agent, or the plaintiff or his agent, and without the knowledge or consent of either, then the insertion was a mere spoliation, and not a material alteration of the notes. This instruction gave the plaintiff the full benefit of the distinction contended for, but had the court refused to instruct the jury at all in reference thereto, it would have furnished no ground for a reversal, for the evidence in the case did not ffei even tend to prove that it was a mere spoliation; on the contrary, it was shown conclusively that the alteration was made by Hubbell, who was the general clerk and financial agent of Campbell, with unlimited powers in all matters relating to the negotiation of the notes. Hubbell drew the notes, took them to Michael to procure his endorsement, and then negotiated them with plaintiff, or one Taylor, who represented plaintiff in the transaction. Hubbell had been in the habit of transacting Campbell’s financial business for years, even to the extent of filling blanks in notes executed by Campbell, and negotiating them in such mode and upon such terms as he thought proper. In point of fact, Campbell seems to have entrusted that branch of his business entirely to Hubbell, without any specified instructions or directions. To hold, therefore, that the act of Hubbell was the act* of a stranger, and thereby invoke the doctrine of spoliation, would be to disregard the evidence in the cause. Let the judgment be affirmed; the other judges concurring.