Montgomery Rail Road v. Hurst , 9 Ala. 513 ( 1846 )

ORMOND, J.

If the proof of the fact of the agency of Webb, depended upon the resolution of the Board of Directors, authorizing the appointment of an agent by the President, it is manifest, that being in writing, and entered upon the minutes of the board, it could only be proved by the production of the book in which the entry was made, or by giving secondary evidence of its contents, after notice to 23ro-duce it. No such notice appears to have been given, and the court certainly erred, in permitting parol evidence of its contents. It is not easy however, to perceive the materiality of this testimony. A corporation,' as well as a natural person, may act through an agent, and its recognition of the act after it is done, will be proof of the authority of the agent to act, just as in the case of a natural 2ierson. A corporation, as well as a natural person, is bound, by those acts, which create a presumption of agency. [Bates & Hines v. The State Bank, 2 Ala. Rep. 462.] The suing upon the note taken by Webb, for the Rail Road Co.,, is prima facie at least, an adoption and ratification of the act of Webb, in taking it.

The court also erred in deciding that the plaintiff could not recover, without proof of its corporate charter. The issues were non assumpsit and nul tiel corporation. The general issue does not cast upon a corporation the necessity of proving its corporate charter, as was held in this court after a full examination of the authorities. [Prince & Garrett v. The Commercial Bank of Columbus, 1 Ala. Rep. 241.] The contrary doctrine has been held in. New York, but even there it is admitted, that the making of a note to a corporation by its corporate name, is an admission of its corporate existence. [Duchess M. Co. v. Davis, 14 Johns. 238; Trustees of Vernon v. Hill, 6 Cow. 23.] The plea of nul tiel corporation, did doubtless put in issue the corporate capacity of the plaintiff, but the notes themselves being payable to the corporation by its corporate name, was an admission by the defendant 'of the fact, and prima facie evidence of the existence of the charter of the company, and user under it.

The court also erred in admitting testimony to prove, that it was agreed between the agent of the corporation, and the defendant, that if the “notes-were sent to the bank,” the defendant should be exonerated from payment. The promise in the body of the note is to pay the Rail Road Co., at the “ Branch of the Bank of the State of Alabama at Montgomery.” This not only justified, but required the plaintiff to "have them there, ready to be delivered if payment was tendered, and the evidence went directly to contradict the written stipulations of the parties. He could no more contradict this by parol, than the promise to pay, or any other term of the contract evidenced by the note. The case might he varied, if a promise of this sort was fraudulently made, and .the notes were thus obtained as asserted in argument, for an improper purpose. The record however warrants no such inference. That presents the naked case of testimony admitted to prove, that the defendant was to be exonerated from payment, if the plaintiff did that, which by the written contract, it was authorized and required to do. [Owen v. Henderson, 7 Ala. Rep. 641.]

The remaining question, the effect of the addition of the two names upon the notes, as payees, without the knowledge or consent of the defendant, is one of some difficulty. The ancient rule was, that every material alteration of a deed, (and the same rule applies to all written instruments,) avoided it, although made by a stranger, and without the knowledge or consent of the parties; but this doctrine does not obtain at this day. The rule as now recognized is, that an alteration, or spoliation of a written instrument, by a stranger, does not affect its validity, if made without the knowledge, or consent of the party seeking to enforce it. If the alteration be material, and made by the party claiming under it, he cannot enforce it. [Brown v. Jones, 3 Porter, 422; Davis v. Carlisle, 6 Ala. R. 707; Newell v. Mayberry, 3 Leigh, 250; Mills v. Starr, 2 Bailey, 359; Stephens v. Graham, 7 S. & R. 508; Cloud v. Stout, 5 Littell, 205.] The presumption of fraud necessarily arises in every such alteration. But if the alteration be immaterial, and be not fraudulently made, it seems to be the better opinion, that it will not avoid the instrument. [Hatch v. Hatch, 9 Mass. 307; Ogle v. Graham, 2 Penn. 132; Hunt v. Adams, 6 Mass. 519; State v. Cilley, 1 N. H. 97; Master v. Miller, 4 Term, 320; Nichols v. Johnson, 10 Conn. 196.]

In most of the cases which we have examined, the alteration was in the body of the instrument, either by the insertion of a date, or some words which had been omitted, and which the law would'have supplied, or which did not alter or enlarge the responsibility of the payor; or by the ad-' dition of some words, which increased, or at least changed his responsibility. • In the first case, the alteration has been considered harmless and inoperative, in the second, fatal to the instrument, as is shown by the cases previously cited.

In Horner v. Wallis, 11 Mass. 309, the payee of a note, procured one, not present at its execution, to attest it as a witness, and the court held it to be such a material alteration, as avoided the note. The opinion of the court seems to have been materially influenced, by a statute of limitations of Massachusetts, making a difference between attested, and unattested notes. Yet the same court, in Smith v. Dunham, 8 Pick. 249, where the payee procured one present at the execution of a note, afterwards, and without the knowledge of the maker to attest it, but without any fraudulent intent, held the alteration to be immaterial.

In this case, the addition of the two names, under the signature of the defendant, was probably made to enable the Rail Road Go. to negotiate the paper, by adding sureties to the name of the defendant. This did not in the slightest degree affect, or in any manner increase, or vary, the liability of the defendant. His promise still continued to be several, and was neither increased or diminished. The names might have been put on the’ back of the note, with impunity, and perform in effect the same office there, that they did below the signature of the defendant. In either position they were sureties for. the Rail Road Company, and not for the defendant.

The principal difficulty we have felt, has arisen from the fact,.that the identity of the instrument, is in some respects destroyed by this addition. But this is in truth more imaginary than real, as it does not cease to be the promise of the defendant, because that of others is superadded. Upon the whole, we think the addition of these names as promissors to the note, though placed there without the knowledge, or consent of the defendant, does not absolve him from the performance of his undertaking, unless they were placed there for some fraudulent purpose. i

Let the judgment be reversed and the cause remanded.