4 Whart. 17 | Pa. | 1839
— Had the name of the witness been subscribed to the note, after its execution, the alteration would have avoided it, as was held in Marshal v. Gougler, (10 Serg. & Rawle, 164.) It is a material alteration of the instrument, because, as is there said, it furnishes a different and distinct medium of proof. Nor can it affect the case, whether it be a bond, or a promissory note, or bill of exchange, for it is at least as important, to prevent the tampering with instruments of the latter description as the former. This rule is founded on a principle of policy, which renders them void without any reference to the character of the writing, or the motives of the party in the particular transaction. These principles are undisputed ; but here the indorsee shows that the note, which is joint and several, was signed at different times, and, as is very probable, at the instance of Lucas Haines, who was the principal, the other promissors being sureties. It was placed in the hands of Haines, also, to be executed, or at any rate delivered by him, and until this was done, the contract was incomplete. May we not infer an authority to Haines, to call a witness to the completion of the contract, or in other words, the contract being unexecuted that he was their agent for that purpose ? It is material to observe, that there does not appear to have been any intention to commit a fraud, nor can I perceive any testimony from which the jury could draw the conclusion, that the witness was required or intended to witness the note generally. His testimony negatives any such presumption. It discloses the fact, that he was called as a witness to the consummation of the contract, and of the signature of the principal promissor, who either signed it or acknowledged it at the time. If in a suit on a single bill it appears, that at the time of its execution, a blank was left, where the name of the payee was afterwards inserted, but it was in evidence that it was left blank, in order that the name of the payee might be inserted, it is good, upon the principle that it is one entire transaction, and not perfected until the delivery of the note to the plaintiff, and that an authority to fill the blank may be inferred. Stahl v. Berger, (10 Serg. & Rawle, 170.) So in Seigfried v. Levan, (6 S. & R. 308,) where a printed form of obligation in blank, was signed by the defendant, and attested, and the bond was afterwards filled up with the sum borrowed on it, and the name of the obligee, and the subscribing witness delivered it to the obligee, it was left to the jury to infer that he was the agent of the obligors, having their authority to deliver the deed. In the case of Stahl v. Berger, a distinction is taken between an incomplete and the formal execution of the contract. In Homer v. Wallis, (11 Mass. Rep. 312,) the Court thought it could not be an immaterial alteration, to cause the name of the person to be placed on the note as a witness, when he was in no respect a witness to any part of the transaction.
Judgment reversed and a venire de novo awarded.