Draper v. Wood

112 Mass. 315 | Mass. | 1873

Morton, J.

In Fay v. Smith, 1 Allen, 477, one of the joint promisors of a note, after it was executed by both and before it was negotiated, altered it by adding the words “ with interest,” and it was held that this alteration avoided the note in the hands of a bond fide holder to whom the payee had indorsed it.

In the case at bar, an equally material alteration was made by one of the joint promisors before the note was passed to the payee. We think the two cases depend upon the same principles. The differences in them pointed out by the plaintiff are in immaterial particulars. It is stated in the opinion in Fay v. Smith, that the words “ with interest ” were added by the procurement of the payee, but it was not contended that the alteration was made with fraudulent intent; and the decision does not turn upon that point. The grounds of the judgment are that the alteration destroyed the identity of the contract into which the defendant entered, and that the note accepted by the payee was a single contract, purporting to bind alike both the promisors, and could not be treated as if it contained two separate agreements, one binding upon the one, and the other upon the other. The fact, also, that the declaration did not contain a count upon the note *s it was before the alteration, was immaterial, and had no effect upon the decision. The same reasons govern the case at bar. The alteration destroyed the identity of the defendant’s contract. He never made the only contract which the plaintiff accepted. In the words of the opinion in the case cited, “ the note used he did not execute ; the note which he executed was never used, but was destroyed by the alteration, and another substituted for it."

We are of opinion, therefore, that the ruling of the presiding judge was correct.

The other questions argued by the plaintiff do not appear to have been raised at the trial, and are not open on this bill of exceptions. Exceptions overruled.