Wait v. Pomeroy, 20 Mich. 425

Wait v. Pomeroy

20 Mich. 425 | Mich. | 1870

Campbell, Oh. J.

The only question raised in this case is whether the destruction of a memorandum, written under a promissory note, and qualifying it, vitiates the note in the hands of a dona fide holder, having no knowledge of the alteration.

We think it quite clear upon the authorities that the note and memorandum constituted but one contract, and were in law a single instrument. There are some decisions which have held particular memoranda immaterial. But no case has been cited, and we have found none which holds that, if material, it may be disregarded. The cases are fully collected in 2 Pars. Bills and Notes, 589 and seq. And while a memorandum on a separate paper is said by Mr. Parsons not to affect parties taking without notice, it is otherwise where all is in one instrument. To use the language of the Court of Queen’s Bench, in Warrington v. Early, 2 Ellis and Bl., 763; “This forms part of the contract. It would' clearly have been so if it had been written in the body of the note, and we think a memorandum of this kind written in the corner of the note is equally part of the contract, because the contract must be collected from the four corners of the document, and no part of what appears there is to be excluded.” Accordingly a memorandum fixing the rate of interest was held a material alteration of the note, which destroyed its validity.

If it formed a part of the original contract, it was a material alteration to detach the memorandum, and leave the note as if it had been absolute. And it is a principle *428well settled that such an alteration avoids the entire obligation. In Wheelock v. Freeman, 13 Pick. R., 165, the precise point was decided on such a memorandum separated from a note, and a similar question had arisen in Coolidge v. Inglee, 13 Mass., 26, and a similar ruling was made there. The same decision was made in Johnson v. Heagan 23 Maine R., 389. In Burchfield v. Moore, 25 L. and Fq., 123, the addition of a place of payment was regarded as a material alteration, so as to avoid a bill, although by act of Parliament the acceptance was made a general one when such words were used originally; for the Court held that the acceptor might be prejudiced by the change. And although the bill was in the hands of a Iona fide holder, it was decided that he could not sue upon the bill, but must look to the party from whom he took it for a return of the consideration. It was held that a similar remedy might be resorted to by the successive holders until they reached the party through whose fraud or laches the alteration was made. And the Court remarked, “The negotiability of bills of exchange is to be favored; but with this view it is material that their purity should be preserved.” And if the alteration is material, it makes no difference whether apparently favorable or prejudicial. Gardner v. Walsh, 32 L. and Fq., 162. That may in some cases have a material bearing, where the fact of consent is in issue.

There seems at first a plausibility in the argument, that a party by signing a note with a separate memorandum beneath, puts it in the power of the holder to gain easier credit for the note, than it would be likely to gain if altered in the body. But as it was well suggested on the argument, no one is bound to guard against every possibility of felony. And practically, it is a matter of every day occurrence, to feloniously alter negotiable paper as successfully by changes on the face as in any other way. The public are not very much more likely to be defrauded in one way than in another. There can never be absolute *429safety except by looking to the character and responsibility of the persons from whom such paper is received, and who are always bound to respond for the consideration if it is forged. Little v. Derby, 7 Mich., 325. If a party makes a contract in such a manner as is authorized by law, he has a right to object to being bound to any other. A bona fide holder before maturity is allowed to receive the genuine contract, discharged from any equities attaching to the contract itself, as between the original parties, but he cannot get a contract where none was made.

The judgment was correct, and should be affirmed.

The other Justices concurred.