183 Mass. 275 | Mass. | 1903
This is an action to recover upon a promissory note, the plaintiff being, the holder and the defendant the maker. The date of the note was April 13, 1887. The declaration contains three counts, one on the note, one on an accounting between the parties, and one on an account annexed. The case was tried by a judge of the Superior Court without a jury and, after a finding for the plaintiff, comes here on exceptions by the defendant to the refusal of the judge to give certain rulings that were asked for. There is also a question of evidence.
The principal question is whether there was a material alteration of the note. At the trial there was apparently a question as to consideration and whether the note, which purported to be a witnessed note, was witnessed at the time it was made and with the consent of the defendant. But the judge found that there was a consideration, and that the note was witnessed at the time that it was made and with the defendant’s consent, thus disposing of those questions.
The exceptions recite that as originally drawn the note was payable to “ Irving A. Evans and John C. Watson or order.” The copy of the note attached to the amended declaration reads “Irving A. Evans, John.C. Watson (and George B. James) or order.” But from the allegations contained in the declaration, it would seem that this is a mistake, the declaration alleging that “the defendant made a promissory note . . . payable to Irving A. Evans and John C. Watson or order” of whicli a copy is annexed. It appeared that the plaintiff was a member of a
Thereafter Watson at the plaintiff’s request made the following indorsements on the back of the note: “ Pay to the order of George B. James. John G. Watson. Pay to the order of George B. James. I. A. Evans by J. C. Watson.” This was the condition of the note at the commencement of the action. After the action was begun the plaintiff without the consent or knowledge of the defendant restored the face of the note to its original condition by erasing his own name as payee and the line that he had drawn through the names of Evans and Watson, and the declaration was amended accordingly. The note as thus restored, with marks and indications of alterations on its face, was offered in evidence and admitted against the objection of the defendant that it had been materially altered and that there were marks and indications of alterations on its face. This is the question of evidence referred to above.
The judge found that the plaintiff was in law and in fact one of the payees of the note, that the alteration was not fraudulent, and that there had not been any material alteration of the note, and refused to rule as requested by the defendant either generally that the plaintiff could not recover, or that if the names of the payees or of either of them were crossed out after the delivery of the note, or if another name was written in as payee after delivery he could not recover, or that it was immaterial that the note had been restored by still further erasures to its original condition.
We think that the rulings and refusals to rule were right. The note as altered taken in connection with the indorsements by Evans and Watson expressed no more than the actual legal liability of the defendant at the time of the alteration. The
The case differs from Stoddard v. Penniman, 108 Mass. 366, relied on by the defendant. In that case the effect of the alteration was to change the liability of the defendant from that of an indorser to that of an original promisor. So in Fay v. Smith, 1 Allen, 477, Draper v. Wood, 112 Mass. 315, and Greenfield Savings Bank v. Stowell, 123 Mass. 196, the effect of the alteration in each case was to enhance the liability of the defendant.
The alteration having been found to be immaterial the action was rightly permitted to proceed on the note in its original condition and the introduction of the note in evidence in its original condition was rightly permitted.
Exceptions overruled.