19 Pa. 178 | Pa. | 1852
The opinion of the Court was delivered, by
In Simpson v. Stackhouse, 9 Barr 186, it is decided on principles perfectly satisfactory, that an apparent alteration in a material part of a negotiable instrument avoids it, unless it be proved that such alteration was lawfully made, and the burden of proving how it was made is on the holder. That the note in question here was altered. in the date can be seen at a glance, and, inasmuch as no evidence was given to explain it, the jury should have been instructed that the plaintiff was not entitled to recover.
Another objection to the judgment is, that the notice to the endorser, of non-payment by the maker, was insufficient. The holder’s attorney sent the notice under seal to the endorser’s place of business, by a messenger who delivered it to a person in the employment of the endorser, telling him not to break the seal, but to keep it until the endorser should return home. This was no notice to the endorser until he actually received it. It might as well have been kept in the holder’s pocket as in the shop of the endorser, if its contents were not to be known. The judge of the Common Pleas thought that if the messenger exceeded his instructions in saying that it should not be opened, the notice was good enough. But we are of opinion that the sufficiency of the notice depends on what the messenger did, not on what he was instructed to do; on the message that was delivered, not on that which was sent.
Judgment reversed and venire facias de novo awarded.
