64 Wis. 159 | Wis. | 1885
After a careful consideration of the authorities and the reasons for holding, that alternations of written contracts, after they are executed, destroy such contracts as to parties not assenting to such alterations, we are of the
The old rule of law in England that any alteration, whether material or immaterial, and whether made by a party interested in the contract or by a stranger, rendered the contract void, was long since abandoned; and the reasonable rule has now become firmly established that an alteration of a contract which will render .it void must be made by a party thereto or with his knowledge or consent; and, further, the alteration must'be material; that is, the alteration must in some way change the legal effect thereof as between the parties thereto. The insertion or addition of words in or to a contract, or the erasing of words therefrom, which do not change the legal effect thereof in any respect, does not render the contract void, and is an immaterial alteration. Williams v. Starr, 5 Wis. 534; Schwalm v. McIntyre, 17 Wis. 240; Matteson v. Ellsworth, 33 Wis. 488; North v. Henneberry, 44 Wis. 306, 319, 320; Krouskop v. Shontz, 51 Wis. 204, 206; Palmer v. Largent, 5 Neb. 223; Aldous v. Cornwall, 9 Best & S. 607; Marson v. Petit, 1 Camp. 82; Trapp v. Spearman, 3 Esp. 57; Sanderson v. Symonds, 1 Brod. & B. 426; S. C. 4 Moore, 42; Catton v. Simpson, 8 Ad. & El. 136; Gardner v. Walsh, 5 El. & Bl. 83; Truett v. Wainwright, 4 Gilman, 411; 2 Parsons on Cont. (6th ed.), 718-720; Granite R. Co. v. Bacon, 15 Pick. 239; Langdon v. Paul, 20 Vt. 217; Huntington v. Finch, 3 Ohio St. 445; Nichols v. Johnson, 10 Conn. 192; Humphreys v. Crane, 5 Cal. 173.
The affixing of the name of Fredericks as an attesting witness to the note in question does not change the liability of the maker thereof in any respect. It has no effect in extending his liability under the statute of limitations, nor does it under our laws facilitate or interfere in any way with its proof. Under our law the production of the note proves its execution, unless the signature be first denied
The possibility that the maker of the note and the attesting witness might both die before an action was brought upon it, and in such case the execution of the note might be proved by proving the handwriting of the attesting witness, is too remote and uncertain to be invoked for the purpose of basing a claim that the addition of such attesting witness is a material alteration of the contract. It seems to me the fact that a pei-son who affixes his name as an attesting witness to a contract, when he has not witnessed its execution, cannot, even in the matter of proof of the instrument, be of any effect under any circumstances; for when it is made to appear that the name was so affixed, or, in other words, when the claimed alteration is proved, the party whose name has been affixed as an attesting witness is no longer such witness, and consequently the proof of his handwriting would be no proof of the execution of the contract.
. If the alteration be wholly immaterial, and in no way changes the liability of the maker of the note, it seems to us wholly immaterial with what intent such alteration was in fact made. The cases cited by the learned counsel for the respondent from Massachusetts and Maine sustaining the correctness of the instruction — viz., Brackett v. Mountfort, 11 Me. 115; Thornton v. Appleton, 29 Me. 298; Homer v. Wallis, 11 Mass. 310; and Smith v. Dunham, 8 Pick. 246 — were all cases where the name of an attesting witness had been added to a promissory note. In these states, when a note is attested by a witness, it extends the liability of the maker under the statute of limitations, and so in fact changes to some extent the nature of the contract and
We cannot consider the fact that it is possible that an action might be brought upon this note in a state where the law enlarges the statute of limitations because the note is signed by an attesting witness. We can only judge of the materiality of the claimed alteration of the note by the application of our own laws. If the alteration be immaterial under the laws of this state, it cannot affect the rights of the parties in our courts because, in an action brought upon the note in some other state, the question of the alleged alteration might be adjudged a material alteration under the laws of that state,, and possibly a different decision might be had. "With that question this court has no concern.
The instructions of the learned circuit judge upon the second ground of defense were correct.
The evidence tends strongly to show that the pretended
There was sufficient proof given on the part of the defendant of the fraudulent nature of the claim made against him upon the note to go to the jury upon that question, and so to shift the burden of proof upon the plaintiff to show that he was a Iona fide purchaser of the note for value before it became due; and, in the absence of any proof on his part on that point, if the jury found the fraud, the verdict would necessarily be for the defendant.
-Because the learned circuit judge misdirected the jury as to the effect of placing the name of Fredericks on the note as an attesting witness, and it is therefore impossible for this court to determine whether the verdict of the jury was based upon the ground that the note was void for that reason or because of the fraud in the transaction between the defendant and Eice, the payee of the note, the judgment must be reversed.
By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.