| Me. | Jul 1, 1864
This is an action of assumpsit, and, to support it, the plaintiff read in evidence a note of the following tenor: —
"Bangor, April 19, 1861. — At five days sight, value received of Charles O. Fanning, we, or either of us, promise, jointly and severally, to pay him or bearer, thirteen hundred and sixty-five dollars and thirty-five cents, with interest from date. "For Enos & Wm. Eastman,
" Wm. L. Eastman.”
The defendants contended, and introduced evidence tending to prove, that the words, "for Enos & Wm. Eastman,” were inserted in the note by the payee, after its execution, and without the knowledge or consent of either defendant, and that these facts constituted a valid defence to the action.
William Eastman and William L. Eastman, were admitted to’be the same person. It was also admitted that the defendants were co-partners, and that the note was given for a co-partnership debt.
The presiding Judge instructed the jury that, if the words "for Enos & Wm. Eastman,” were placed on the note by the payee, after its execution, and without the knowledge o.r consent of defendants, it would be such an alteration as would avail the defendants to avoid the note in this suit.
To this instruction the plaintiff excepted, and his counsel contends, in a very able and instructive argument, that the exceptions ought to be sustained and a new trial granted. He says that the defendants were co-partners, and that the note in suit was given for a co-partnership debt; that Wm. L. Eastman had the power, and that the language of the note, "we, or either of us, promise,” &c., shows that he intended to bind his co-partner as well as himself; that the
1. Was the insertion of the words ”for Enos & Wm. Eastman,” a material alteration of the note? Of this we cannot entertain a doubt. Without these words the note would not be evidence that Enos Eastman was in any way holden upon it. We are not now asserting that ho would not be holden upon it, — we are only asserting that the vote itself would be no evidence of it, — that his liability, if established at all, would have to be made out by evidence dehors the note. But, with these words in, the note itself establishes his liability, -prima facie. It is very clear, therefore, that the insertion of the words "for Enos & Wm. Eastman,” changes the effect of the note as an instrument of evidence, and makes it prove more than it otherwise would. " Any alteration which changes the evidence or mode of proof is material” 2 Parsons on Bills and Notes, 564.
2. Was the form of the note such as to authorize the payee to insert the words "for Euos & Wm. Eastman?” Was it apparent upon the face of the note that Wm. L. Eastman intended by his own signature to bind his co-partner? We think not. On the contrary, the form of the note excludes such an inference. It is in form a joint and several note, and a partner cannot bind his co-partner severally. The true inference to be drawn from the form of the note is, that it was made to be signed by two persons, not that two persons were to be bound by the signature of one; and that, for some cause, the signature of the second was not obtained. The note itself does not disclose a
But we do not see that any point of law, arising out of this question of implied' consent, is open to the plaintiff. Consent, whether express or implied, was a fact to be found by the jury; and the presiding Judge does not appear to have made any rulings unfavorable to the plaintiff in relation to it. He told the jury what the consequences would be if the alteration was made without consent; but, so far as appears, he left the question whether there was or was not consent, to the jury, unembarrassed by any rulings unfavorable to the plaintiff. It is unnecessary, therefore, to discuss this branch of the case further. 2 Parsons on Bills and Notes, 565.
3. If, then, the alteration was a material one, and was made by the payee after the execution of the note, and without the knowledge or consent of the defendants, was it such an alteration as would avail the defendants to avoid the note in this suit?
Tampering with documentary evidence is not to be encouraged. It is the right of every one to have his contracts remain as he has made them. If error has accidentally crept into a written contract, a court of equity, iu proper cases, will correct it. But the law does not allow one of the parties, without the consent of the other, to do it.
It was held in Pigot’s case, (11 Coke, 27,) that, when a deed is altered in a point material, without the privity of the obligor, it thereby becomes void. The reason of the rule is, that a man shall not take his chance of committing a fraud, and lose nothing by it in case he is detected. The rule was extended, in Master v. Miller, (4 T. R., 320,) to all written instruments; and affirmed in the same case on writ of error, (5 T. R., 367,) and ever since followed by
It is said, in Chitty on Bills, 85, that an alteration to correct a mistake does not vitiate a bill of exchange; and this remark seems to have given rise to an erroneous belief in the minds of some. In all the reported cases on this point, it appears that the alterations were made by consent, and the remark, that such an alteration does not invalidate the instrument, had reference to the stamp law, and meant no more than that an alteration, by consent, to correct an error, would not require a new stamp. It is erroneous to suppose that one of the parties may lawfully alter an instrument, even to correct an error, without the consent of the other. The other may deny that there is any error, and the holder of the instrument cannot lawfully take upon himself the decision of that question. (2 N. H., 545.)
The correct doctrine is, that any alteration which changes the legal effect of the instrument, either in its terms, or the parties, oras an instrument of evidence, is material; and, if made by the holder, without the consent of the other party, will invalidate it. This is a wise rule of law, and sound policy requires its stringent enforcement.
The alteration of the note in suit was material, and, so far as appears, wholly unauthorized; and we think the presiding Judge did right in ruling that it was such an alteration as would avoid the note.
Exceptions overruled.
Judgment on the verdict.