| Ark. | Jan 15, 1844
By the Court,
The only question raised by the bill of exceptions i=, whether the filling up of the blank for the date was such an alteration as avoided the note. The evidence fully establishes the fact, that the blank for the date was unfilled when final'» ly delivered to Brungard, and that the date was afterwards inserted either by him, or by Breneman, as, in the absence of evidence to the contrary, the legal presumption is, that it was inserted by one who had the legal custody of the note. According to the view which we entertain, it is immaterial whether the alteration were by them, or by any other person, as it would not then be the same obligation, and this is the question raised by the pleadings. Masters vs. Miller, 4 Term. Rep. 320. It is quite immaterial whether the alteration is effected by the changing, erasing, or inserting a date, the legal consequences are the same. The principle extracted from all the cases is, that any alteration in a material part of any instrument or agreement, avoids it, because it thereby ceases to be the same instrument. It is a rule, founded in good sense and policy, and protects the integrity of such instruments from violation by refusing to alter them. Every sanction to their safety and uninterrupted circulation, free from alteration, should be afforded. If the note, when signed and finally delivered by the payors to the payee, was perfect and of legal obligation, an alteration could be effected as well by the insertion of a date, where it had been omitted, as by the changing of a date, already affixed, because, then .the obligation of the parties is altered. The date was not necessary to the validity of the note, and in that shape, after delivery, it was the legal and definite obligation, and afforded a legal right of action to the payee. Chit, on Bills, 168. Armet vs. Breame, 2 Ld. Raym. 1076. Giles vs. Bourne, 6 M. & S. 73. 2 Chit. Rep. 300. Lansing vs. Gains, 2 J. R. 300, and numerous cases which establish the principle mentioned, and that the date in such cases, is computed from the delivery or issuing. It is advisable in most cases to insert a date, as it has been considered that the date is prima facie evidence of its having been made on the day of the date. Taylor vs. Kinlock, 1 Starkie 175; but the question which we are considering is not whether the note in-that shape was imperfect in form, but whether it was perfect in obligation. The note was due two years after date, which, according to the cases above, whs to be computed from the’ day of its delivery, which was about the last of March, or first of April. The date inserted was the 4th day of March, by which the day of payment was accelerated nearly one month. The legal operation, therefore, of the note, when delivered, was not the same which it imported after its alteration. This was the very principle of the case of Master vs. Miller, 4 Tenn. Rep. 320, in which the date of an acceptance had been altered from the 36th to the 20th day of March, by which the day of payment had been accelerated, and the note held to be avoided. And the law is the same, where the alteration by the payee, without the consent of the payor, by which the time of payment is retarded. Bank of the United States vs. Russell & Boone, 3 Yeates’ Rep. 391. Any alteration in a material point, whether for the benefit of the payor or not, without his consent, vitiates the instrument; and the date, though not material to give legal vitality to the note, was made material in this case, as fixing the time of payment. If the date had been immaterial, as where its office is only to fix the time of execution, and does not have any reference to the time of performance, its insertion would be of no consequence, or, if inserted only to supply or declare the real intention of the parties, it would not vitiate the note. Atwood vs. Griffin, Ryan & Mo. 425; or if the date had been inserted in accordance with the actual time of execution and delivery, it would not have avoided the obligation, for in such case it is still the same obligation. The application of these principles to the case was not, however, warranted by the facts before the jury, which showed no mistake to be corrected, and expressly disproved the truth of the date as evidence of the time of execution.
According to the principles before referred to, the circuit court was not warranted in charging the jury “that the filling up of a blank date in a promissory note by the holder, to whom it is delivered, is not an alteration or erasure of it.” There is a class of cases where the filling of blanks is no avoidance of the note, and which will bind the other parties on the ground of a presumed or actual consent to such alteration. When a person endorses a note with blanks for date, sum, &c., and entrusts it to the maker, he thereby gives him a letter of credit for an indefinite sum, and constitutes him, by implication of law, his agent in the filling up of the blanks. Russell vs. Lang-staff, 2 Doug. 516. (2 Com. Rep. S. C. 516, Vialet vs. Patton.) Bank of the Commonwealth vs. McChord & Payne, 4 Dana's Rep. 191, arid the law is the same, where one of several co-obligors in a note, signs it in blank and delivers it (o the other payee. lie thereby gives him a general authority to fill it up al his discretion. 4 Dana 191" date_filed="1836-06-11" court="Ky. Ct. App." case_name="Bank of Commonwealth v. McChord">4 Dana Rep. 191. The reason upon which these cases proceed is, that while the note is incomplete and in fieri, it is not the obligation of the parties, and that any alteration effected by the persons to whom it is entrusted, is presumed to be by the consent of the others. This distinction.peryades all the cases of implied authority. But as soon as the instrument is complete by passing into the hands of another person j and.-b^Qomes an available security, such implied authority ceases, and an authority, in fact, is necessary; because any alteration then madefwithout the consent of the other parties, either changes their contract, or creates an obligation where none subsisted before, and such was the ground upon which the case of Crutchly vs. Mann, 5 Taunt. 534, was decided. In that and many other cases cited at the bar, where parties have been held bound, alterations after the negotiaton of the note, they were so declared, not because it was the case of a blank, but because there was an express authority to fill it. When, therefore, the note in this case was in the hands of any one of the co-obligors before delivery, it would have been competent* for any one of them, to whom it was entrusted, to have filled up the blank, because this was not inconsistent with the general authority resulting by law, and the whole matter might be said to be still in fieri; but as soon as it was delivered to the payee, it was beyond their control, and Brungard having accepted it in that condition, as perfect, was not at liberty, without the assent of the payors, to insert a date different from the true date. It therefore devolved upon the plaintiff to prove his authority to insert the date of 4th March, which he failed to do. Upon general non est factum, the proof lies upon the plaintiff. Pope vs. Latham, 1 Ark. 66" date_filed="1838-01-15" court="Ark." case_name="Pope ex rel. Reed v. Latham">1 Ark. Rep. 66. We therefore think, that the court erred in overruling all of the instructions, which the defendants asked, and erred also, in giving all the instructions asked by the plaintiff, except so far as he charged the plaintiff, that a deed cannot be delivered to the obligee as an escrow. The circuit coutt should have told the jury that, in such case, no authority was implied by law, but (hat it requires express authority to fill up the date, which might be proved by direct testimony, or inferred from circumstances. Inasmuch as the instructions of the court probably influenced the jury materially, in their finding, we must reverse the judgment, and remand the case for a new trial, with instructions to be proceeded in, according to law, and not inconsistent with this opinion.