On the twenty-sixth day of September, 1885, Frank Buby brought his bill of complaint against William E. Talbott, and John William Bandall and Teresa M. Randall, defendants. The bill alleges that the complainant loaned to John William Randall the sum of $1,500, and in consideration of the loan, and as evidence of the indebtedness, the defendant executed and delivered to one Mariano Armijo, in trust for the 'complainant his promissory note hereinafter described. Prior to the execution and delivery of the note the defendant William E. Talbott, indorsed his signature and name upon the back of the note, and delivered the same in blank to the defendant, John William Randall, and afterward the same was signed by said Randall, and by Teresa Randall, also one of the defendants, and delivered to one Mariano Armijo, in trust for the complainant. When the note was delivered to Mariano Armijo, the same was in words and figures as follows, to wit:
“$1,500. Albuquerque, N. M., April 17, 1883.
“One year after date, we promise to pay to the order of Mariano Armijo, in trust for Prank Ruby, fifteen hundred no hundredths dollars, at the Central Bank here, at eighteen per cent per annum from date, value received.
“John William Randall.
“Teresa M. Randall.”
On the same day the note was indorsed by Mariano Armijo as follows:
“Pay to Prank Ruby or order.
“Mariano Armijo.”
The note was then transmitted by Mariano Armijo to and received by the complainant. The complainant stated that at the time he received the note he was absent from the territory of New Mexico, and that after receiving the same, being dissatisfied with the form thereof, and being desirous- of obtaining from the makers, William E. Talbott, John William Randall, and Teresa M. Randall, another and different note as evidence of said indebtedness, instead and in lieu of the note above set forth, for that purpose he sent and transmitted the note to the partnership firm of Armijo Bros. & Borrodaile, doing business in Bernalillo county, and composed of Mariano Armijo and others, and requested and directed them to procure and obtain the execution and delivery of a different note, as before mentioned. The complainant states, on information and belief, that Armijo Bros. & Borrodaile neglected to obtain any other or different note in lieu of the above mentioned note, and that the said John William Randall and John Borrodaile, while the note was in the possession of the firm, changed and altered it without the knowledge or consent of complainant, in such manner that the same became and was in form, words, and figures following, to wit:
“$1,590. 00-100.
“Albuquerque, N. M., April 27, 1883.
“One year after date we promise to pay to the order of Mariano Armijo, in trust for Frank Ruby, fifteen hundred and ninety no hundredths dollars, at the Central Bank here, at twelve per cent per annum from date, value received.
“John William Randall,
“Teresa M. Randall.”
And signed upon the back as hereinbefore stated.
The complainant further stated that the alteration was so made, without any authority or direction from him, by Randall and Borrodaile, or one of them, in good faith, inadvertently and innocently, for the purpose and with the intent on their part to execute and carry out the wishes and direction of the complainant in regard to the procurement of another and different note, and in lieu or instead of the first mentioned note, and by mistake and inadvertence on their part, and in the mistaken belief that by the means of such alteration the wishes and. directions of complainant could and would be as well, effectually, and legally accomplished and executed as by the execution by the makers of another and different note in lieu thereof, and without any fraudulent or wrongful intent on their part, or that of complainant, or of any other person; that Talbott pretends and gives out that the alteration was made without his knowledge or consent, and that by reason thereof he became, was, and is released and discharged from all liability to complainant by reason of the note and loan; alleges that John William Bandall and Teresa M. Bandall have become and now are nonresidents of this territory, and insolvent, so that an action or judgment at law against them would be useless and unavailing; and that, unless the note be restored to its original proper form, complainant will sustain irreparable injury; and prays that this may be done, and for further relief in the premises as equity may require. All the defendants entered their appearance.
The defendant Talbott demurred to the bill for want of equity, the court sustained the demurrer, and, the complainant refusing to plead further, the court dismissed the bill as to the defendant Talbott, at the complainant’s costs, and the complainant brings the case into this court by appeal, and assigns as errors: £<(1) The district court erred in sustaining the demurrer of appellee William E. Talbott, one of the defendants below, to the the amended bill of complaint of appellant, the complainant below, and in dismissing said bill, for the reason that the same is sufficient in form and substance to entitle said complainant to the relief therein prayed. And said complainant prays that the judgment aforesaid may be reversed and annulled, and that he may be restored to all things which he has lost by occasion of said judgment.”
Counsel for appellant relies upon the following propositions as grounds for the reversal of the judgment in this case: (1) Defendant Talbott was a joint maker of the note, and defendant Bandall was his agent to fill up and deliver the same. (2) The alteration having been innocently and mistakenly made, under the admitted circumstances, equity has jurisdiction to restore the instrument to its proper form. (3) If Borrodaile and Randall held to have acted for appellants and not as strangers, then the bill shows that they were acting under mistake, and without fraudulent purpose, and appellant, as an innocent party, is entitled in equity to the correction, which can not impose any burden upon Talbott different from that which he confessedly assumed by signing the note upon the faith of which appellant advanced the money. Equity has jurisdiction to correct a mistake of law as well as of fact, which a court of law has 'not.
1. The authorities cited under the first proposition present the case of a blank indorsement by a third party, made before the instrument is indorsed by the payee, and before it is delivered; the question being whether the party is to be deemed an original promisor, guarantor, or indorser. This question was fully examined by the supreme court of the United States in the case of Good v. Martin,
Counsel for Talbott, the appellee, contends that as the alteration of the note was made by one of the makers and the agent of the appellant, without the knowledge or consent of the appellee, it operated to discharge him from liability on the note. Authorities are cited by counsel in support of the proposition. The case of Wood v. Steele,
Though it may be difficult to reconcile these conflicting decisions, it is believed, on the weight of authority, that the alteration of the note was material; and being done by one of the makers and by John Borrodaile, .or one of them, without the consent of Talbott, he was thereby discharged from liability on the note. It is not alleged in the petition why Ruby was dissatisfied with the original note, except as to its form, nor what was the form he desired, only that it-should be another and different note from the makers, Talbott and John William Randall and Teresa. Randall, as evidence of the debt. Ruby appears to be in possession of the altered note, which he asks may be restored to its original form, and which bore an unlawful and usurious rate of interest. The sum for which the note was given and its date and the rate of' interest, were altered, and a different sum and date and rate of interest substituted. It would be a useless proceeding to restore the note to its original form, unless it was intended that Talbott should be liable as indorser or one of the makers. The demurrer was properly sustained, and the bill of complaint dismissed as to Talbott. Judgment affirmed.
With due deference and respect to the opinion of -the majority of the court, I prefer to place the affirmance of the judgment below on the grounds herein stated, and am not willing to hold that the alterations of the note complained of in the bill avoided it entirely. The right of the holder of a contract, erased and interlined without his authority or consent, to enforce such instrument, is an important one, and I am not willing to hold a principle which might deprive the holder of such paper from enforcing it. The complainant’s bill tersely states the theory of his ease, and is as follows-:
“Tour orator, Frank Ruby, a citizen and resident of the State of Colorado, brings this, his bill of complaint, against William E. Talbott, a citizen and resident of' the county of Bernalillo and territory of New Mexico, and John William Randall and Teresa M. Randall, citizens and residents of the state of New "York, defendants herein, and thereupon your orator complains and says: That heretofore, to wit, on the 17th day of April, A. D. 1883, at said county of Bernalillo, at the request of said defendants herein, your orator loaned to John William Randall the sum of fifteen hundred dollars in lawful money of the United States, and in consideration thereof the said defendants, as evidence of said indebtedness, made, executed, and delivered to one Mariano Armijo, in trust for your orator, their certain promissory note hereinafter specially mentioned and described. Your orator states that, prior to the execution and delivery of said note, the defendant William E. Talbott, by the name and signature of W. E. Talbott, wrote and indorsed his signature and name upon the back of said note, and delivered the same in blank to the defendant John William Randall, and that thereafter the same was, by and under the direction of said John William Randall, subscribed and signed by the said John William Randall, and Teresa M. Randall, and afterward, to wit, on the same day, was delivered to one Mariano Armijo in trust for your orator. That when the said note was so delivered to Mariano Armijo in trust for your orator, as aforesaid, the same was in words and figures as follows, to wit:
“ ‘$1,500.00.
“ ‘Albuquerque, N. M., April 17, 1883. '
“ ‘One year after date we promise to pay to the order of Mariano Armijo, in trust for Frank Ruby, fifteen hundred no hundredths dollars, at the Central Bank here, at eighteen per cent per annum from date,, value received.
“ ‘John William Randall.
“‘Teresa M. Randall.’
“And that thereafter, to wit, on the same day, the said note was indorsed by the said Mariano Armijo, as follows:
“ ‘Pay to Frank Ruby or order.
“ ‘ [ Signed] Mariano Armijo . ’
“And the same was then by the said Mariano Armijo transmitted to and received by your orator. Your orator states that at the time said note was so received by him he was absent from said territory of New Mexico, and that after receiving the same, being dissatisfied with the form thereof, and being desirous of obtaining from the said makers, William E. Talbott, John William Randall, and Teresa M. Randall, another and different note, as evidence of said indebtedness,. instead and in lieu of tbe said note above set forth, for that purpose sent and transmitted said note to the partnership firm doing business under the name and style of ‘Armijo Bros. & Borrodaile,’ at said county of Bernalillo, and composed of Mariano Armijo, Elias Armijo, and John Borrodaile, and requested and directed them to procure and obtain the execution and delivery of such other and different note before mentioned and as evidence of said loan hereinbefore mentioned.
“Your orator further states that he is informed and believes that the said Armijo Bros. & Borrodaile neglected and failed to obtain the execution and delivery of any other or different note to your orator in lieu of said above mentioned note, and that the said John William Bandall and John Borrodaile, while said note was so in possession of said firm, Armijo Bros. & Borrodaile, for the purpose aforesaid, changed and altered the said note, without the knowlédge or consent of your orator, in such manner that the same became and was in form, words, and figures following, to wit:
“ ‘$1,590.00-100.
“ ‘Albuquerque, N. M., April 27, 1883.
“ ‘One year after date we promise to pay to the order of Mariano Armijo, in trust for Frank Buby, fifteen hundred and ninety no hundredths dollars, at the Central Bank here, at twelve per cent per annum from date, value received.
“ ‘John William Bandall.
“ ‘Teresa M. Bandall.’
“And signed upon the back thereof as hereinbefore • stated.
“Your orator further states that the said alteration was so made without any authority or direction from your orator by the said Bandall and Borrodaile, or one of them, in good faith., inadvertently and innocently, for the purpose and with the intent on their part to effectuate and carry out the wishes and direction of your orator in regard to the procurement of another and different note in lieu and instead of said note as first hereinbefore set forth; and by mistake and inadvertence on their part, and in the mistaken belief that by means of such alterations the wishes and directions aforesaid of your orator could and would be as well, effectually,' and legally accomplished and executed as by the execution by said makers of another and different note in lieu thereof, and without any fraudulent or wrongful intent on their part or that of your orator, or of any other person. But your orator states that said Talbott pretends and gives out that said alteration was made without his knowledge or consent, and that by reason thereof he became, was, and is released and discharged from all liability to your orator by reason of said note or said loan hereinbefore mentioned. Tour orator is advised by counsel and believes that on account and by reason of said alteration he is, by the strict rules of the common law, barred and deprived of the right of recovery against said Talbott upon said note in its said altered form, and your orator is informed and believes, and so states, that since the alteration of the said note, and since the same became due and payable according to the terms thereof, the said John William Randall and Teresa M. Randall have become and are now nonresidents of this territory, and wholly insolvent, so that an action or judgment at law against them, or either of them, would be wholly useless and unavailing, and that, unless said note be restored to its original and proper form, your orator will sustain irreparable injury. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity, and to the end that the said William E. Talbott, John William Randall, and Teresa M. Randall, who are made parties defendant to this bill, may be required to make full, true, and perfect answer to the same, but not under oath (the answer under oath being hereby expressly waived), and that the said promissory note may be restored by the said defendants to the original and proper form thereof, before the same was altered as aforesaid, or in default of such restoration by them by the master in chancery of this court, or in some other manner under the direction of this court, and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet.”
To this bill a demurrer was sustained by the court below, and that action is complained of here.
It will be observed this is not an action at law to recover on the note either on its original or in its new form after the change, but is an appeal to the equity jurisdiction of the court, under the particular facts pleaded, to restore the note by decree to its original form; the bill shows a very strong case for relief in some way. The alteration complainant did not authorize, nor does it anywhere appear that he ratified or approved or consented to the act whereby the form of the note in substantial particulars was changed, nor was he in any way negligent, nor did he impose any hardship upon the accommodation maker, Talbott; yet it is contended, by the operation of some rule of law, that he can not recover on the note as originally made, or as altered, and that equity will not decree a restoration. If so, complainant is made the victim of an act done without his authority or consent, never approved or ratified by him, and which he was powerless to prevent. I do not believe the law imposes such a hardship on an innocent person. To do so would be to punish when there is no offense; to inflict a penalty where there is no wrong. The original transaction, as appears by the averments in the bill, was this: Mariano Armijo was the trustee of Ruby. The Randalls procured from Buby a loan of $1,500, on the faith of their signature to the note as originally .made, and the signature as an accommodation maker of Talbott, who may in some sense be called a “surety.” The name of Talbott on the paper was probably the inducement for Buby to part with his $1,500. When the note was executed and delivered to Armijo, and the money paid to the Bandalls, the transaction was completed and the legal liability of Talbott fixed. The promise being made to Armijo, in trust for Buby, no assignment to him was' necessary. The position of the appellee is that, without payment by the maker, in the absence of negligence on the part of Buby, the holder, with no fraud or improper or wrongful act imputed to him, yet the maker is discharged of liability, and all remedy for Buby is gone. The position is that he can not recover on the note in its new form, because it is not the note of Talbott; that he can not recover on it in the original form, because the unauthorized interlineation in the the note, and addition thereto, has destroyed its validity, and that equity is powerless -to relieve. If that is a correct position, then there may be a wrong and no remedy. I do not believe an honest obligation to pay money can be discharged or wiped out in that way; but, to the contrary, hold that the complainant Buby has an ample legal remedy, by an action at law on the note in its original form, with averments like those in the bill of complaint, showing that the interlineations and changes were made without the holder’s consent or authority or knowledge. Proof of such averments would relieve the holder of all responsibility for the altertion, and require the court to disregard them. The averments of the bill are clearly to the effect that Armijo Bros. & Borrodaile were by Buby created his particular agents to do one single act, and not his general agents. On this point the bill avers: “Your orator states that at the time said note was received by Mm he was absent from the territory of New Mexico, and after receiving the same, being dissatisfied with the form thereof, and being desirous of obtaining from the makers, ¥m. E. Talbott, John ~W. Randall, and Teresa M. Randall, another and different note as evidence of said indebtedness, instead and in lieu of the note above set forth, for that purpose sent and transmitted said note to the partnership firm doing business under the name and style of ‘Armijo Bros. & Borrodaile,’ at said county of Bernalillo, * * * and requested and directed them to procure and obtain the execution and delivery of such other and different note, before mentioned, and as evidence of said loan before mentioned.”
A general agent is one authorized to transact all his principal’s business, or all of his business of some particular kind. A particular agent is one authorized to do one or two particular things. '* * * “If a particular or special agent exceeds his authority, the principal is not bound.” 1 Pars. Cont. 40. The averments just quoted from the bill show clearly that Ruby created the firm as his special agent only to take a new note and thereupon surrender the old one. The firm was not constituted his general agent to erase, interline, add to, or alter the old note. On the contrary, the authority was carefully guarded and expressly limited to the taking of a new note in lieu of the old one. The firm exceeded its authority, and, instead of requiring a new note, as its instructions provided, went outside of its authority, and, without either the knowledge or consent of Ruby, changed by alteration the old note in important particulars, as will be seen by the bill. This act, outside of the authority of the agent, should not bind Ruby, while he repudiates the act. The question here is between the holder and Talbott, the original accommodation maker, it being averred in the bill that the Randalls are both nonresidents of the territory, and also insolvent. If it be held that this' unauthorized act does not discharge Talbott, such a holding does not enlarge his liability, but only compels him to perform his original promise. There is nothing in the case in the nature of an estoppel, as Ruby has done nothing apparent from the averments to work an estoppel.' The original note should not be avoided against Ruby as a penalty for tampering with it, because the averments show he has not done so. Talbott, by the act complained of, can in no way be made to pay more than he agreed.' The case of Wood v. Steele,
In Lubbering v. Kohlbrecher,
In U. S. v. Spalding,
To the same effect is Langenberger v. Kreiger,
That case is in point. The firm of Armijo Bros. & Borrodaile stood in the same relation to the note that Smith did to the draft. Each was a holder of the paper for a particular purpose, as the agent of its owner, and neither had right to add to or take from the paper. Each acted outside, of authority, and if in the California case the holder of the draft should not. in law be defeated of his right by the unauthorized act of an agent, in this case the plaintiff should, in an action at law on the original note, have relief against the unauthorized act of his agent; especially where it would not make the indorser’s liability greater by a Single nickel than that which he originally assumed. “A distinction is to be observed between the alteration and the spoliation of an instrument as to the legal consequences. An alteration is an act done upon the instrument by which its meaning or language is changed. The term is, at this day, usually applied to the act of the party entitled under the deed or instrument, and imports some fraud or improper design on his part to change its effect. But the act of a stranger, without the participation of the party interested, is a mere spoliation, not changing its legal operation, so long as the original writing remains legible. If, by the unlawful act of a stranger, the instrument is mutilated or defaced, so that its identity is gone, the law regards the act, so far as the rights of the parties to the instrument are concerned, merely as an accidental destruction of primary evidence.” 1 Greenl. Ev., sec. 566. In Union and Nat’l Bank v. Roberts,
Mr. Parsons, in his work on Contracts (volume 2, p. 716, note m), fully discusses the effect of an alteration upon written instruments. He says: “In this country it is clearly settled that a material alteration by a stranger will not render an instrument void, if it can be shown by evidence what the instrument 'was before it was altered.” The following authorities are cited by the learned author, whose accuracy, of statement as to the result of decided cases is always received as correct, in support of his views. Nichols v. Johnson,
In Hunt v. Gray, 35 N. J. Law, 227, also quoted in
Hunt v. Gray, supra, contains to my mind such a forcible and irresistible argument in support of the position that a liability exists at law on the original note in this case described, that full extracts from the opinion of that court are here given. The facts of that case, as disclosed by the record, are these: The suit was upon a note of which the defendant was maker, one John E. Hunt being the payee. The consideration of- the note was a horse sold and delivered. This horse was the property of George Hunt, the plaintiff, for whom said John E. Hunt was acting as agent in the sale of the horse. This agency was not disclosed to defendant. Upon receipt of the note the agent showed it to his principal, the plaintiff, and took it to the bank to have it discounted for his use. The bank refused to cash the note, as it was drawn without “defalcation” merely. The agent, without knowledge of the plaintiff, thereupon inserted into the note the words “or discount.” The bank then took the note, and the proceeds passed to the plaintiff. The note not being paid at maturity, the plaintiff took it up, and brought suit upon it in the action then before the supreme court. That court say: “The alteration was a material one, and it is alleged it was made by the agent of the plaintiff. The question, then, is presented as to the effect of such an alteration of a written contract. I have no doubt any legal instrument is, as a means of evidence, annulled by such an act. This is the doctrine as extracted from Year Books, expounded in Pigot’s Case, 11 Rep. 27. The law, as resolved in this celebrated decision, was that when any deed is altered in a point material by the plaintiff himself, or by any stranger without the privity of the obligee, be it by interlineation, addition, raising, or by drawing a pen through a line, or through the midst of any material word, that the deed thereby becomes void; and in the recent case of Davidson v. Cooper, 11 Mees. & W. 778; s. c., 13 Mees. & W. 343, Lord Abingeb, in delivering the judgment of the court of exchequer, said: ‘There is no doubt but that, in case of a deed, any material alteration, whether made by a party holding it, or by a stranger, renders the instrument altogether void from the time when such alteration is made.’ In Master v. Miller, 4 Term R. 320, this doctrine was held to be applicable to promissory notes and all written contracts. To the extent that a legal instrument will be avoided by an alteration made, either directly or indirectly, by the party claiming an interest under it, this doctrine has been repeatedly recognized by this court, and as a principle in our legal system is not to be questioned. * * *
“The reasons for this rule are obvious, and of the most solid character. In its absence, the inducement to fraud would be strong, and public policy requires, in the language of Lord Kenyon : ‘No man shall be permitted to take the chances of committing a fraud without running any risk of losing by the event that it is detected.’ * * * If the instrument has been altered by the mistake of the party holding it, relief must be sought in a court of equity. Within this limit, I do not find that the legal principle has been seriously called in question. * * * The alteration of the note in this case destroyed it, if such alteration, in legal intendment, is to be ascribed to the plaintiff. But here, I think, intervenes one of the infirmities of the defense. The alteration of this note was not the act of the plaintiff, because the person who made it was not his agent for that purpose. These were the facts: John E. Hunt was the agent who sold the plaintiff’s horse for time. In that transaction he took the note in dispute, and carried it to the plaintiff. He then took it to the bank, and had it discounted, the proceeds going to the plaintiff. From these circumstances an authority to alter this note can not be inferred. It could not have been within the contemplation of either the principal or the agent at the time of the creation of the agency. Consequently the act must be regarded as done by a stranger, without the concurrence, express or implied, of the plaintiff. The question is, will an alteration made by a stranger vitiate the note? It will be observed that the rule as stated by Lord Coke in the case cited from his reports, answers this inquiry in the affirmative, and that seems to be, after .some fluctuation of sentiment, the present prevailing opinion in the English courts. But the doctrine rests, I think, rather on ancient dicta than on actual ancient decisions, and the American rule, and with much better reason, appears to be entirely the other way. Prof. Parsons treats the rule as completely settled in this country that a material alteration by a stranger will not render an instrument void, if it can be shown by evidence what the language was as it originally stood. 2 Pars. Cont. 233, note 9, where the eases on the subject will be found collected. As the common law, in its ancient form can not be said to have been so settled on this point as to be imperative on this court, we are at liberty to follow either the modern English or American rule, and I have already said the latter seems preferable. The only ground I have found suggested in support of the new stringent rule is this: that a paper can not be altered by a stranger without laches on the part of the holder of it. But this is an assumption which has no foundation in fact. A man is not always remiss who trusts his paper with another. Many of them, every one knows, must be constantly passing from hand to hand. Under such circumstances, the imputation of laches is utterly misplaced. - Nor does there appear any necessity, arising from considerations of public policy, for the enforcement of so severe a rule. Strangers having no interest in an instrument are under no great temptation to corrupt it, and it is therefore an evil which will not often occur, while the injustice of concealing a written contract, without fault in the party holding it, is so flagrant that it should require the strongest reasons for the law to imply it/ Adopting, then, the rule recognized by the courts in this country, and applying it to this case, the result is that this verdict founded on the note in question must stand, as the note was not altered by the plaintiff, nor with his consent, and as the act of a stranger could not deprive it of its legal force.”
The case which has been so fully quoted is to my mind absolutely conclusive on the rights of the plaintiff, Frank Ruby, in this case. It is pertinent to inquire, what has Ruby done that his right of action on the original note should be taken from him? Wood v. Steele,
It may, however, be contended that the original note was avoided because of the averments showing the act of one of the makers with respect to the change. A reference to the bill discloses that it is charged that Randall and Borrodaile, or one of them, while the note was so in the possession of Armijo Bros. & Borrodaile, without authority, made the changes described in the bill. It nowhere appears that Randall had possession or custody of the note'by Ruby’s direction or consent. The contract was completed and liability fixed when the note was delivered to Ruby. After that Randall had no right to its custody, -except on payment by him. It was then a completed transaction. He had made delivery. Suppose, after that, he had requested of Ruby a moment’s inspection of the note, and while having.it so in his custody Randall had stricken out or written in material words, without the knowledge or consent of Ruby, would such an act release Talbott, the other maker? If so, all an accommodation maker need do, to pay his obligation or to discharge his debt, is to procure the maker to ask of the holder an examination of the paper, which, in the trust usually pertaining to business transactions, would be granted, and then, while making such examination, to strike out any material word, or write in one, and in a moment thereby the obligation, “in the twinkling of an eye,” is paid, discharged, gone. The mere statement of such a proposition would seem to carry its own refutation. How, under the allegations of the bill, does Randall stand differently toward the note? What right has he to the possession of the note? Ruby did not intrust it to him. He did not instruct or authorize Armijo Bros, or Borrodaile to do so, or to even allow Randall the custody of or inspection of it, but only to surrender it to the custody of Randall, on condition that a new obligation in different form should be made. If this note were in Randall’s hands, pending the payment of the money, before the completion of the transaction for delivery to Talbott on payment of the money, and while so in his hands Randall altered the same, it may be a different rule would apply; but after the transaction was complete, the note delivered to Tabott, and the liability of all parties to it fixed, under the averments of the bill, I believe that Randall should be regarded as a stranger, and that neither his alteration of the note, nor the unauthorized change in its terms, could destroy the plaintiff’s right of action on the original instrument. The complainant was careful not to aver he did not have a right of action on the note in its original form, but he did aver that upon advice of his counsel he believed he had no right of action on the note in its new and altered form. That he did not have such right of action is apparent, but I believe he has a right of action on the original note, if the averments of the bill are true, and he did not afterward ratify the act which he imputes to Borrodaile or Randall in changing the note, notwithstanding the alteration, and for that reason he has an adequate remedy /at law, and did not need the aid of a court of equity to restore the note. On that ground the action of the court below in sustaining the demurrer, it seems to me, should be sustained.