Church v. Fowle , 142 Mass. 12 ( 1886 )

Field, J.

The evidence was that Holway attested the note as a witness before it was delivered to the plaintiff, and that he did this, without the knowledge of either the plaintiff or defendant, “as a matter of course, because the defendant signed by mark; ” and the argument is that this attestation materially enlarged the defendant’s liability, because an action can be brought upon an attested note at any time within twenty years after the cause of action accrues, while, if the note is not attested, an action must be brought within six years. Pub. Sts. c. 197, §§ 1, 6, 7. If it be assumed that the effect of a witness attesting the signature of the maker of a note who signs by his mark is to bring the note within §§ 6 and 7 of this chapter of the Pub. Sts., that this is a material alteration, and that there is no such custom of witnessing such signatures that it can be considered that -the defendant must be held to have authorized the attestation, yet the attestation was made.before delivery, and was not made by the payee or by his procurement, and it was not an alteration of an existing contract. There is, indeed, no evidence that the attestation was made by Holway with any fraudulent intent, unless the fact that he made it is, under the circumstances, evidence of a fraudulent intent; and Holway, in writing the note, was as much the agent of the defendant as of the plaintiff. Taking the case most favorably for the defendant, it is that of a material alteration of a note, by attesting it before delivery, by one not a party to it, without the procurement or knowledge of any party, the note being received and accepted by the payee without any knowledge that it had been attested, and without relying upon the attestation as a part of the contract. Such an alteration does not make the note void, but the alteration, being unauthorized and no part of the contract as understood or intended by either party, may be stricken out. Nickerson v. Swett, 135 Mass. 514. Drum v. Drum, 133 Mass. 566. See Fay v. Smith, 1 Allen, 477; Adams v. Frye, 3 Met. 103, 106; Smith v. Dunham, 8 Pick. 246.

Exceptions overruled.