Kane v. Herman

Dodge, J. The appellant’s contention is that although he,- in common with the other guarantors, consented to the release of defendant Cook from liability upon the note in suit, he did not consent to the physical erasure of Cook’s name therefrom, and that the promissory note and guaranty thereof, when offered in evidence, presented upon its face a material alteration, and could' not properly have been received, nor could it serve as a basis of recovery in an action 37 predicated thereon. There is no substantial controversy that all the parties did agree that Mr. Cook should be released upon this note and guaranty. That is evidenced by the oral testimony as to the verbal agreements, and by the re'citation in writing of the existence of such an agreement. The situation disclosed was that of several individuals undertaking, each separately, to finance and provide for a considerable volume of indebtedness in the midst of the panic period in July, 1893, at a time when the presence of ostensible liability, or liability for which one might be required to respond, although he had a perfectly good claim on others for reimbursement, might be a very serious obstacle to his plans for carrying and providing for that which he in fact ought to pay. So that the extinction of Cook’s even ostensible liability must have been well understood to be very material to him by all of the parties to that negotiation, including the appellant. Again, the idea involved in the release was not extinguishment as among themselves of so much of Mr. Cook’s share of the liabilities which all had assumed for the corporation, because the parties, ex in-dustria,, entered into a‘ stipulation as to how they would divide among themselves all such liability as fell upon them respectively. The expression “ release ” must therefore have been used by the parties with reference to the particular instrument, and must have intended release of the specific liability to the creditor, in order to accomplish the purposes which they all had in mind. How did they intend that such result be attained? It appears, and was of course known to all parties, that the instrument held by Kane, and guaranteed by the several defendants, was a negotiable promissory note, still having some three months to run. It was therefore liable on any day to reach the hands of an innocent holder for value, who would have the right to enforce it according to the very words thereof, regardless of any agreement either among the guarantors or between the guarantors and the creditor, Mr. Kane. There was 38 therefore no way possible to accomplish the purpose, and to release Mr. Cook from the peril of being called on to pay that note, except by alteration of the instrument ■ itself, either by striking his name from the list of guarantors, or by some other alteration which should declare his nonlia-bility. It is therefore an irresistible conclusion, from the agreement which the parties confessedly made for the release of Mr. Cook from this note, that they contemplated and authorized such acts as would effectuate that release; and, although there is conflict of evidence as to whether the physical erasure of Cook’s name was expressly assented to, we are constrained to hold that assent thereto was given by implication from the other terms of that.agreement. Of course, as a result of this view, the paper, when offered in evidence with the explanation, though altered, was shown to have been altered by the consent of the appellant, and was admissible in evidence, and such alteration had no effect to discharge him from liability thereon. The trial court, therefore, was right in directing a verdict for the plaintiff as against this appellant. By the Cowrt.— Judgment affirmed.