113 Mass. 386 | Mass. | 1873
Upon the former hearing of this case it was decided that the alteration made in the note in suit was a material alteration, which avoided the note as to the defendant unless made with his assent. Stoddard v. Penniman, 108 Mass. 366. At this trial the plaintiff introduced evidence tending to show that the defendant assented to the alteration at the time it was made, a part of which was the deposition of Hanson, who made the alteration. He stated in answer to the second cross-interrogatory: “Penniman gave me his full and unequivocal consent that I should get the money from Stoddard in just the manner I did, after I had failed in getting it from the bank, provided I should get the consent of Brown, after he returned, which I did.” In his answer to the eleventh direct interrogatory, he said : “ I did notify Penniman and he consented under the following circumstances: When I learned that I could not get the money from the bank and that C. A. Brown had left the city for several days, I went to Penniman and laid the whole circumstances of the case before him, and told him that I could get the money from R. S. Stoddard on that note with the consent of the indorsers; he consented that I should get the money of Stoddard on that note, provided that I would notify Brown on his return, and if he made objection, I would relieve both and furnish other security, and in this way I obtained the money,
If Penniman assented to the alteration upon the understanding that the note was to be used at once, and Hanson was after-wards to procure the assent of Brown or furnish other security, the note would bind him in the hands of Stoddard, and the failure of Hanson to procure Brown’s assent would be no defence. In this view of the case, there was no condition precedent to Hanson’s right to pass the note to Stoddard as a contract binding upon the defendant, and. his subsequent failure to perform an executory agreement to procure the assent of Brown would not affect the plaintiff’s right to recover. On the other hand, if his procuring Brown’s assent was made by Penniman a condition precedent to his right to use the note, then, as the condition was not performed, Penniman never consented to the alteration or to the new note as a contract binding upon him, and the plaintiff cannot recover.
If this latter was the only view justified by the evidence, the instructions given at the trial, as reported in the bill of exceptions, would be correct and sufficient.
They were, “ that if Penniman consented to the alteration of the note before the time the money was obtained, as stated by Hanson in his answer to the second cross-interrogatory, and Hanson did not obtain the consent of Brown, then the plaintiff could not recover, unless it also appeared that Penniman subsequently consented to and ratified the alteration.” These instructions assume that the only construction to be given to the evidence is, that obtaining the consent of Brown was a condition precedent to the right to use the note ; but it was the province of the jury to construe this answer in connection with the other parts of the deposition and the other evidence in the case; and it was competent for them, if they believed Hanson, to find that Penniman assented to the immediate use of the note as altered, and was satisfied to take an executory agreement by Hanson to pro cure Brown’s consent or furnish other security.
