Rogers v. Shaw

59 Cal. 260 | Cal. | 1881

Sharpstein, J.:

When offered in evidence the face of the bond corresponded with the copy set out in the complaint. But between the execution óf it and the commencement of this action, the bond was twice altered: first, by substituting “ O. J. Hubner” for “John M. Berry” as the claimant of the property seized by the plaintiff upon the attachment sued out by the defendant, Shaw; and second, by erasing “ O. J. Hubner” and restoring “ John M. Berry” as the claimant.

The Court found among other things: “ That when said bond or obligation in the complaint mentioned was signed by the defendants in this action, a blank space was left in said bond for the name of the claimant or claimants of said property, and the plaintiff was instructed by the defendant, H. C. Shaw, at the time the bond was sent to him to fill up said blank space with the name of the person so claiming the property which said plaintiff had attached; and in accordance with said direction so received from said defendant, Shaw, the said plaintiff filled up said space by writing therein the name of John M. Berry.”

The evidence shows that there was no blank space left in the bond for the insertion of the name of the claimant, and that “ John M. Berry” was named in the bond, as the claimant, before it was delivered to the plaintiff. There is really no conflict in the evidence upon this point. It fully sustains the allegations of the answer in regard to said alterations. Those allegations, if material, were in issue, and the finding upon them should have been in accordance with the facts proven. If, however, the facts as alleged and proved by the defendant, did not of themselves, or in connection with other facts alleged, constitute a defense to the action, they were immaterial, and it is never necessary to find upon an immaterial issue. It is an undisputed fact that the bond when introduced in evidence had been restored to the condition it was in when executed, so far as it could be without obliterating the evidence which it bore on its face of having been twice altered. There is no allegation or proof. that the alterations were made with a fraudulent design or that the defendants could possibly be injured by them.

The result of both alterations was to restore the bond to its original condition, and while we do not wish to he understood as approving of the tampering with it for any purpose, we can not hold that such tampering, when ignorantly and innocently done, as it appears to have been in this case, and without injury or prejudice to the obligors, rendered the instrument void.

Judgment and order affirmed.

Thornton, J., and Myrick, J., concurred.