30 Minn. 150 | Minn. | 1883
Defendant Elwis signed a negotiable promissory «■mío as surety for defendant Haekett, and delivered it to Haekett, <<pon condition that He should not deliver it to plaintiff, the payee, until he procured the signature of one Johnson as co-surety. Hack-ett failed to get Johnson’s signature, but, without the knowledge or consent of Elwis, got defendant Rice to sign it, and then delivered it to plaintiff, who took it in the ordinary course of business for a valuable consideration, without any notice of the facts hereinbefore stated and now set up by way of defence. Elwis now claims that he is not liable — First, because the note was delivered without Johnson’s signature, contrary to the condition upon which he signed it and left
The case of Haskell v. Champion, 30 Mo. 136, was one where, at the instance of the payee, the names of new principal obligors were .substituted in place of the original one, by changing the individual signature of one partner into the firm signature, thus attempting to make a party surety for persons for whom he had never agreed to be responsible.
The case of Hall v. McHenry, 19 Iowa, 521, contains dicta by some of the judges which go farther than any decision we have found. In that ease the name of the additional surety was obtained before delivery of the note, but at the instance and for the benefit of the payee. After the note was delivered, the payee cut off the name of this additional surety, without the knowledge or consent of the first surety. Wright, J., who delivered the opinion of the court, while admitting that he had found no authority to that effect, argues that thus adding a new surety, even before delivery of the note, would amount to a material alteration of the instrument, which would discharge the
The rule that a material alteration of a contract avoids it had its origin largely in the necessity of preserving and protecting the integrity and sanctity of contracts. Properly applied, the rule is a salutary one. But the general sentiment of courts now is that the doctrine had been extended quite far enough, and that formerly, especially in England, it had been carried too far, and applied to cases not within the mischief intended to be prevented. Therefore, the tendency now is, if not to restrict, at least not to extend it beyond what has been already decided. To hold that the obtaining of an additional surety to a note, under the facts of the case at bar, amounted.to an alteration of the instrument that would discharge Elwis, would in our judgment be harsh, technical, and work injustice, and establish a doctrine contrary to the general understanding of business men, which ought to be the law of such eases, and is the only just basis of the implied contract resulting from the facts. In dealing with commercial paper, complete on its face, and signed by several parties, we apprehend it never occurs to a business man that it is incumbent upon him to inquire of each maker whether he understood when he signed the paper just what other parties were to sign with him, or whether any additional names have been subsequently added without his knowledge or consent. To require any such thing would be inconvenient, without reason, and an innovation upon business usages. The idea that when a person signs a note as surety, and delivers it to his principal, no other surety is to be obtained, and, if the note cannot be negotiated in that form, it cannot be used at all, unless all parties consent to the introduction of a new surety, is, we apprehend, contrary to the general understanding of the commercial world.
It seems to us that, at least as against an innocent holder, the principal obligor, to whom the paper has been intrusted by the
Order affirmed.
Gil filian, G. J., because of illness, and Dickinson, J., having tried the action in the court below, took no part in this case.