7 Blackf. 412 | Ind. | 1845
— Debt by the plaintiffs against the defendant and one Sim on a sealed bill. Davis pleaded non est factum. Sim made default. The cause was tried by the Court. On the issue, the Court found for the defendant Davis. Judgment was entered against Sim.
The note sued on was for the sum of 180 dollars payable to the plaintiffs. On the trial, the deposition of a witness was read which stated that he, the deponent, was the subscribing witness to the note, and that “ when he was called in to see the note signed it was blank so far as related to their names and to the amount, and when he witnessed it, it was changed only by the addition of the names of the signers, and the blank as to the amount still remained.” There is some obscurity in the statement of the witness as above given from his deposition. The parties, however, agree that the note after it was signed and sealed was blank both as to the payee’s name and to the amount. The witness further stated, that Davis and Sim, at the time of signing the note, said that it was to be used at the paper-mill of Sheets and Yandes, at Indianapolis, for the purchase of paper, and that the quantity of paper that Sim proposed to get could not then be stated, but it would amount to 40 or 50 dollars in value. Sim took possession of the note and passed it to the
An alteration in a bond or deed after its execution, in a material part, without the consent of the parties, vitiates the instrument. But if the alteration be made, even in a material part, with the consent of the parties, it is valid. We are aware that there is a diversity of opinion, as to whether consent even will give validity to a deed that has been altered after execution in a material part, but the weight of authority is that it will. Hudson v. Revett, 5 Bingh. 368.—1 Greenl. Ev. 635, and note 8.—Woolley v. Constant, 4 J. R. 54. The principle was also recognized by this Court in the case of The State v. Polke, Nov. term, 1843. The case of Texira v. Evans, cited in 1 Anstr. 228, resembles in some respects the one under consideration. A bond was signed in blank, and given to an agent with instructions to raise money upon it. It was negotiated and filled up by the agent, and it was held to be a good bond. That decision has been questioned both in England and in the United States, but there are several recent decisions that sustain it. Masters v. Miller, 4 T. R. 320.—Knapp v. Maltby, 13 Wend. 587. 22 Wend. 348
It is always a matter of fact for the jury to decide, whether consent was given or not, and that brings us to the point upon which this case must turn. The testimony is, that at the time the note was signed and sealed by Davis, it was said that it was to be used at the mill of Sheets and Yandes, and for the purchase of paper that should not exceed in
— The judgment is affirmed with costs.
The case of Texira v. Evans, cited in the text, is expressly overruled in England, on the ground that to allow the blank to be filled up by an agent appointed by parol, and then delivered in the absence of the principal, as a deed, would be a violation of the principle, that an attorney to execute and deliver a deed for another must himself be appointed by deed. Hibblewhite v. M'Morine, 6 M. & W. 200.