5 Kan. App. 465 | Kan. Ct. App. | 1896
There can be no question as to the alteration having been made. Any change in the terms of a written contract which varies its original effect and operation, whether in respect to the obligation it imports or to its force as a matter of evidence,
It is no answer to aplea'of alteration that its operation is favorable to the parties affected by it. No man has a right to vary another’s obligations at his discretion, whether for his good or ill. When varied it ceases to be that other’s act, and it suffices for him to say, “Non hiec in fcederá veni.”
“Alterations may consist in changing first, its date, or second, the time, or third, the place of payment, or fourth, the amount of principal, or fifth, interest to be paid, or sixth, the medium or currency in which payment is to be made, or seventh, the number or relations of the parties or in, eighth, the character and effect of the instrument as matter of obligation or evidence.” Daniel’s Negotiable Instruments, vol. 2, § 1375.
And in commenting on the fifth item he says :
“In the fifth place, as to interest, any addition of words making the bill or note bear interest when it originally did not, or changing the time when interest should run, or varying the percentage of interest, is of the same character as if it changed the principal.” § 1385.
But it is contended by defendant in error that, unless the change was made fraudulently and it was so proven, the defendant could not obtain any advantage by the change ; and the court below took this view of it, as shown by the instructions.
We cannot agree in this. While there are authorities which hold to this view, we think the highest and best are to the effect that ‘ ‘ if the alteration is material that the instrument is avoided; the alteration vitiates it regardless of intentions.” Angle v. North
In Davis v. Eppler (38 Kan. 633), the court in passing upon this question says :
“ We believe it would be a dangerous rule to allow written contracts, more especially negotiable paper, to be altered without the consent of the maker, or parties who are bound by the indorsement. It is intended that such instruments shall pass into the hands of those who may become interested in them, without addition or alteration, and without the fear that they may have been altered. The facilities for making alterations are numerous, and the difficulty of proving them great; all means should be employed to impress a sense of their inviolability upon the minds of those who have them in their possession.”
In Evans v. Foreman (60 Mo. 494 ) it is said :
“If mistakes do arise in the preparation of written instruments, aside from the consent of all parties to the needed correction, the courts of the country alone can furnish adequate redress, and will not give sanction or countenance to the attempts of an interested party to effect by his own hand the desired reformation ; as an honest blunder of this soft if upheld in one instance, might necessitate sanctioning an alteration having that appearance, but which, from the infirmity of human testimony, might be grossly otherwise.”
It is the policy of the law to allow no tampering with written instruments. The holder of a note has no right to alter it without the consent of all the parties interested, and such unwarranted alteration should make it null in his hands, no matter how pure his motive may have been in making the alteration. Bank of Springfield v. Fricke, 75 Mo. 178; Moore v. Hutchinson, 69 id. 429 ; Neff v. Horner, 63 Pa. St. 327 ;
The judgment in this case will be reversed and the case remanded for new trial.
