Fisher v. Dennis , 6 Cal. 577 ( 1856 )

The opinion of the Court was delivered by Mr. Justice Heydenfeldt.

Mr. Chief Justice Murray concurred.

The form in which the note is written, manifests an agreement between the parties that it should run at some monthly rate of interest. If the note had passed into the hands of an innocent holder, there would be no doubt that he could recover the principal and interest as the note stands, because the makers, by leaving the rate of interest blank, placed it in the power of the payees to practice a deception, for which, as against third parties, the makers would have to suffer. But as the note remains in the hands of the payees, it will not do, without any evidence as to the agreement to pay interest, to allow them to fix the rate.

The filling up of the blank, however, is not an alteration of the note in legal sense so as to vitiate it, and prevent any recovery. Such an alteration refers to a change of something expressed, so as to defeat the intention of one of the contracting parties. Here there was no such thing, because, as I have said, the intention was manifest to pay some interest. The failure to express it by the makers was evidently an omission, and the supply of it by the holders at a rate optional with them, was no alteration, although it cannot be allowed to stand without proof of the consent of the makers. The plaintiffs must be allowed to recover their principal, with legal interest.

Judgment reversed and cause remanded.