Lisle v. Rogers , 57 Ky. 528 ( 1857 )

Judge Simpson

delivered the opinion of the court.

Lisle sued Rogers as the assignor of a note executed by John McMurtry for $2,500, dated December 10th, 1855, payable six months after date.

Rogers alledged, in his answer, that he endorsed the note for the accommodation of McMurtry, who sold it to Lisle; that when he endorsed it it was dated the 4th instead of the 10th of December; and that McMurtry, without his knowledge or consent, altered the date, which Lisle knew when he bought it. This alteration in the date of the note he relied upon as having the legal effect to discharge him from all liability as assignor.

Upon the trial the jury, by the consent of the parties, found a special verdict, and upon that verdict the court gave judgment for the defendant. The verdict was in substance that the date of the note sued on had been altered by McMurtry from the 4th to the 10th of December, after Rogers endorsed it, without his knowledge or consent, and before it was sold to Lisle, but that the alteration was not known to Lisle when he purchased.

The plaintiff has appealed to this court from the judgment of the court below; and it becomes important to determine, in the first place, what questions are presented upon this appeal, and the permissibility of an inquiry by this court in relation to the correctness of the verdict of the jury upon the evidence adduced on the trial.

No motion was made for a new trial, nor was the propriety of the verdict of the jury called in question in any manner in the court below. The questions of fact submitted to the jury, and to which they were required to respond, were such as the parties deemed material, and they consented that upon them alone a special verdict should be rendered. The court did not decide any question of law during the progress of the trial, but only pronounced judgment on the special verdict of the jury. The correctness of that judgment is the only question that arises on this appeal.

2. Where the circuit court decides a case alone upon a special verdict of a jury, and the finding of the jury cannot be revised, the court of appeals can only decide upou the correctness of the decision of the court upon the special verdict and pleadings. 3. The general and almost universal doctrine of the law is, that any material alteration of a note or bill will render it void; and it has been sometimes held that an unimportant alteration will have the same effect. (Bank 0} Commonwealth vs. McChord and Payne, 4 Dana, 191.) The correct doctrine, however, is, that the alteration must be in a material part of the instrument.

The counsel for the appellant, to sustain the position that the alteration which was made in the date of the note was immaterial, contended that the note when it was endorsed by Rogers was in blank as to the time of payment, and that this fact was sufficietly established by the evidence in the cause. We do not deem it necessary to decide what effect this fact would be entitled to, if it had been found by the jury, and constituted a part of their special verdict. But the court below did not decide upon all the evidence in the cause, nor was it authorized so to decide, upon any question that was made before it. Its decision was based upon the verdict of the jury alone, and this court, in the investigation of the correctness of the judgment pronounced by it, cannot go behind the verdict, and examine the testimony, nor decide whether other facts were proved, which might have modified essentially the legal effect of the verdict. If the fact referred to had an existence, and was regarded as important, it could and should have been presented to the jury, and responded to by them, but this not having been done it cannot now be relied upon.

The doctrine that a material alteration of a note or bill will render it void seems to be almost universally established, and indeed it has been sometimes held that any alteration, however unimportant it may be, will have the same effect. (Bank Commonwealth vs. McChord and Payne, 4 Dana, 191.) But conceding the correct doctrine to be, that an alteration to avoid such an instrument must be material—and such seems to be the tendency of modern decisions on the subject—it is perfectly manifest that the alteration in the note sued on. was very material so far as the assignor was concerned. His liability was not that of an endorser on commercial paper, but depended on the inability of his assignee to coerce payment out of the maker by the use of due diligence immediately upon the maturity of the note. Consequently the time of its payment was very material to him, because its extension tended to increase his risk. He might have been willing to have become liable as an assignor on a note payable in three months, and have refused to incur such a liability on a note payable in. six months. By his assignment he guarrantied the solvency of the maker until the note became due; and, although an extension of the time for six days might not greatly increase his risk, yet as it did to some extent have that effect, the alteration must be deemed to be material, and to have exonerated the assignor from all liability upon his assignment, unless there be some reason for exempting this case from the operation of the general doctrine upon the subject. In our inquiries as to the materiality of the alteration in the date, we have regarded the time of payment as having been inserted in the note at the time it was endorsed by Rogers, as nothing contained in the special verdict will authorize a different conclusion.

Does any reason then exist why the general rule to which we have referred does not apply to this case?

One of the reasons relied upon as exempting it from the operation of this rule is the circumstance thatthe alteration was made byMcMurtry whilst the note was in his possession, and before it was sold to Lisle. It is contended that previous to that time the instrument was incomplete, and imposed no obligation on either the maker or assignor; that the contract had no legal existence until the sale and delivery of the note to the plaintiff, and that there could be no legal alteration of a contract which had no existence. And besides, that the assignor, by leaving in the hands of the maker an instrument thus unfinished and incomplete, for the purpose of issuing it, must be presumed to have conferred upon him an authority to render the instrument complete, bj’ making its date correspond with the time of its sale and delivery..

This argument is defectiye, in failing to discriminate between the tenor and form of the instrument, and the obligation created by it. The form and terms of the instrument were complete when the endorsement was made, although the obligation imposed by it was not created until it was actually delivered to the purchaser. It is a material change of the instrument, without the consent of the person whose liability wall be thereby prejudicially affected, that discharges him from his liability on it. It is unimportant when such alteration occurs, if it be made without authority, and after the person prejudiced thereby becomes a party to the instrument. The extent of the authority conferred upon the maker, by the act of the endorser in placing the paper in his hands for the purpose of raising money upon it, is a different question. Every' reasonable presumption of authority should, we admit, be indulged against the endorser, under such circumstances. The right to fill up all the blanks in the instrument should be presumed, but this presumed authority cannot be so extended as to empower the maker to change the note in any essential particular, either in date, amount, or time of payment, when they are expressed in the instrument at the time the endorsement was made. If a person were to endorse a note for one thousand dollars, and leave it with the maker to sell for his own benefit, certainly no implication could arise, that he had authority to alter it to five thousand dollars, and to increase to that extent the liability of the endorser. If he would have no authority to make that alteration, upon the same principle he would have no authority to make one of less importance. The true doctrine on the subject is, that the maker of the note has, under such circumstances, a limited authority which he cannot exceed, and which only empowers him to make sale of it according to its tenor and effect at the time it was endorsed. Where a note is incomplete, either as to its date, amount, or any other particular, at the time of the endorsement, there his authority is less circumscribed, and he may fill up the blanks according to his own discretion. Indeed, such an endorsement on a blank note has been held to be a letter of credit for an indefinite sum. (Russel vs. Langstaff, Doug. 514.)

**• x u the time of payment of a note from the 4th to the J 0th of the same month, as it increases the risk by extending the time of payment, renders a note void as to a surety, and he is no longer liable upon it. (19 John. 391; Master vs. Milner, Smith’s Lead. Ga.vol. 1, 458; jDovis vs. Jenny, 1 Metcalf, 21; Stephens vs. Graham, 7 Sarg. Sf Rawle, 505; Ranh U. S. vs. Russell,3 Yeates, 391.)

In the case of the Bank of America vs. Woodworth, (18 John. Rep. page 315,) where a promissory note was made and endorsed for the accommodation of the maker, who having it in his possession after it was endorsed, wrote in the margin “payable at the Bank of America,” it was decided that the defendant having endorsed the note, -without any restraint on the maker as to the place of payment, he must be deemed to have left that circumstance to his control and discretion, and that for this reason the alteration was not such a one as discharged the endorser from his liability on the instrument. But it may be inferred, from the reasoning of the court, that if it had deemed the alteration material, and it had been made without the consent, either express or implied, of the endorser, it would have had that effect. The judgment of the supreme court was afterwards reversed in the court for the correction of errors, (19 John. Rep. 391,) and it was there decided that the alteration was not only unauthorized, but was material, and having been made by the maker of the note without the approbation of the endorser, the latter was thereby discharged from all liability on the instrument. The chief justice and the chancellor dissented from that opinion, but their dissent was placed by them mainly on the ground of an implied'authority in the maker to appoint a place of payment, inasmuch as no place of payment was appointed in the body of the note. And the chancellor was also of the opinion that the original contract was not changed by the addition that was made to the note, and that therefore the alteration waa immaterial.

That decision is an authority expressly in point in x %> x this case. And as it is well settled that alterations in the date, sum, or time for payment, are material, {Master vs. Milner, Smith's Leading Cases, vol. 1, 458, and the cases refered to in the note,) the alteration of the date in the note sued on was of such a character as under the doctrine in that case, and in many others, wholly discharges the endorser from all liability. (Davis vs. Jenny, 1 Metcalfe, 221; Stephens vs. Graham, 7 Sergeant and Rawle, 505; Bank of the United States vs. Russell, &c., 3 Yeates, 391.)

5. When a note or bill is altered without the consent of the holder, after he has acquired right in the note or bill, the holder may still have a right to the money due upon such note or bill, but not when the right attaches after the alteration.

It is also contended that the alteration in the date of the note not having been made by Lisle, or with his privity or consent, but by McMurtry himself, falls within that class of cases in which the alteration having been made by a stranger, does not affect the rights of the party interested in the instrument.

The cases in which the circumstance of the alteration having been made by a third person, without the privity of the person claiming, prevents it being fatal, are those in which the plaintiff had, previously to the alteration, acquired a good right and title to the money on the note, of which he could not be divested, by the improper act of a stranger, committed without his pi'ivity or assent. Rut the present case is of a different description altogether; the alteration having been made before the plaintiff acquired any title to the note, any title that he has must have attached alone to the instrument in its altered condition. In the former class of cases the claimant recovers on the note, as it was actually made, without regard to the alteration, whilst in this case, if the plaintiff can recover at all, it must be on the note in its altered state, inasmuch, as he had no title to it until after the alteration was made. Neither did the maker of the note occupy the attitude of a stranger. He had a right to alter the note, so far as his liability was concerned, but he had no right to make an alteration materially affecting the endorsers liability, so far as the latter was concerned. And as the plaintiff cannot claim under the instrument, in the condition it was before it was endorsed, because he had uo title to it during the time it was in that condition and as the endorser is not liable on his contract, because of the alteration of the note in a material part, without his knowledge or assent, it follows that the plaintiff has no remedy whatever against the assignor.

But the liability of the assignor is also attempted to be placed upon another ground. It is said that he not only guaranties the solvency of the debtor, but also the genuineness of the contract assigned, and that the guavranty or promise commences its legal existence only from the date of the contract between the assignor and assignee.

This proposition is no doubt correct, but the principle it involves is misapplied in the attempt to make the sale of the note to the plaintiff the time of the guaranty by the assignor of the genuineness of the instrument assigned. It is true, that the contract between the assignor and assignee was not created until the sale of the note was made; but that contract related back to the time of the endorsement, and only guarantied the genuineness of the instrument at the time the endorsement was made upon it, and not at the time of the sale to the plaintiff by the maker. The doctrine contended for would render the endorser liable on the note, although the amount of it might have been altered from one to five thousand dollars, after the endorsement was made, and before it was assigned by the maker, to the assignee.

We are therefore of the opinion that neither of the grounds relied upon is sufficient to take the case out of the general rule, by which a material alteration has the effect of avoiding a contract.

Wherefore, the judgment is affirmed.