Rhoades v. Castner , 94 Mass. 130 ( 1866 )

Chapman, J.

The two papers were properly read in evidence to the jury. Taken together they constitute an order on the defendants for a cargo of coal of a certain-designated kind, limiting the size of the vessel to a drought of nine and a half feet stating the'price per. ton and the place of delivery, signed by the plaintiff and accepted in writing by the defendants. The jury were properly instructed that the two papers, taken together, constituted a sufficient memorandum of the contract under the statute of frauds. Lerned v. Wannemacher, 9 Allen, 412. Parol evidence was properly admitted to show what number of tons of coal would be contained in such a cargo as the writing described, that being a latept ambiguity.

It appeared that the plaintiff had, while the court was sitting, signed his name at the bottom of the paper which he held, and which was signed by the defendants, but had erased it again at the request and with the consent of the defendants, after the trial began. It is not alleged that it was done fraudulently, but it is contended that it was a material alteration, and for that reason the paper was objected to as being inadmissible in evidence. It is not contended that it alters the effect of the contract, if the two papers are to be taken together. The ground of the objection is, that it would enable the plaintiff to maintain his action without using the paper which was in the possession of the defendants. The objection seems to us to be very much like the objection made in Ford v. Ford, 17 Pick. 418. There the note was signed, and was attested by a single witness, which gave it the character of a witnessed note. The addition of the attestation of another witness in the absence of the maker furnished to the plaintiff additional evidence, but it was held not to be a material alteration of the note, because it made no alteration in its character. So here, the signature of the plaintiff made no alteration in the character or substance of the memorandum.

The alteration not being material, nor made fraudulently could not affect the instrument. Adams v. Frye, 3 Met. 108.

Exceptions overruled.