40 Barb. 16 | N.Y. Sup. Ct. | 1863
This case was correctly decided at special term, both in respect to the facts and the law. It falls directly within the principle of the case of Warrington v. Early, (75 E. C. L. 763 ; S. C. 22 Eng. L. and Eq. Rep. 208.) In that case the note was payable in six months, with lawful interest, which was five per cent only. After the note was delivered, without the consent of the maker, but with the consent of the holder, there was added in one corner of the note, “ interest at six per cent per annum.” This was held to be a material alteration and fatal to the validity of the note, against the maker. Lord Campbell, Ch. J. who delivered the opinion of the court, said of the addition : “ That, we think, was made part, of the contract; had it been inserted in the body of the note it would unquestionably have been so; and though it was inserted in the corner, if that had been done before the note was signed, it would have bound the' maker, inasmuch as the effect of a written contract is to be collected from all written within the four corners of the instrument.”
Here the note was payable three years from date, “ with interest from the first day of April next.” The addition is immediately under the body of the note, and is, “ int. to be paid semi-annually.” This most obviously was intended to alter the time of the payment of interest, and that it is a material alteration can scarcely be disputed. (2 Parsons on Bills and Notes, 545.) The addition was made, as the case shows, in pursuance of an agreement to that effect between Towner Reed the principal, and the plaintiff, without the knowledge or assent of the defendant who signed as surety
The case of Nevins v. De Grand, (15 Mass. Rep. 436,) relied upon by the plaintiff’s counsel, is not in point. That case was decided upon the principle of allowing an erasure made by mistake and with honest intentions, to be expunged, and the canceled words to be restored, where no one had been injured by the mistake. (2 Parsons on Bills and Notes, 569, 570.) This is not such a case. Here the intention was to alter the instrument and create an additional burthen upon the makers. This destroyed the defendant’s obligation, and the plaintiff could not restore it by merely counting on the-note as it stood before the alteration. The alteration having been made, not by mistake but by design, and upon agreement, striking it out now would be a new and material alteration of the instrument.
The judgment must therefore be affirmed.
E. Darwin Smith, Welles and Johnson, Justices.]
