Hewins v. Cargill , 67 Me. 554 ( 1877 )

Libbey, J.

Undoubtedly the change of a note for $500 to a note for $100 is a material alteration of it; and, if made without his consent, will discharge a signer or indorser. True, the change is not disadvantageous to one who is holden to pay it, since it only reduces the amount for which he would otherwise be liable ; but it makes another and a different contract of it; and any signer or indorser has a right to say, and can say truly, that the note in its altered form, is not his contract. This question was fully examined in Chadwick v. Eastman, 53 Maine, 12, and Lee v. Starbird, 55 Maine, 191.

It is contended by the counsel for the plaintiff that this defense' is not open to the defendant, because he did not make the affidavit and give the notice required by Buie X of this court. But it seems to us that the whole prohibitory force of the rule, as it stands, is to prevent the defendant from calling upon the plaintiff to prove in the outset the signature of the defendant, on the execution of the contract declared on; and that it does not preclude the defendant from taking the barden upon himself of proving an alteration which would avoid the contract. If he offers evidence of such alteration which is a surprise to the plaintiff, the presiding judge, in the absence of any previous notice that such defense was intended, would doubtless order a postponement, on the application of the plaintiff, to enable him to meet it. Cases are liable to arise where the first knowledge that the defendant has of any alteration is when the instrument is produced at the trial in evidence. If we construed the rule' as precluding the défendant from proving an alteration without previous affidavit and notice, no judge would hesitate to allow a defendant, thus surprised, time to prepare his affidavit and give notice of his intention to make the defense, and this would necessitate the same delay which it was the object of the rule to avoid. If the defendant’s affidavit of his confidence in such defense and his design to make it is desirable, the rule can be amended so as to require it; but as it reads we think it only dispenses, in the absence of the affidavit, with the formal proof of execution which the plaintiff would have to make in order to get the instrument before the jury as evidence.

As the verdict was for the defendant, the instruction as to the rule for computing interest on the note becomes immaterial.

Exceptions overruled. Judgment on the verdict.

Appleton, C. J., Dickerson, Barrows, Danforth, Virgin and Peters, JJ., concurred.