McMillan v. Hefferlin , 18 Mont. 385 ( 1896 )

Pemberton, C. J.

The only question presented by this appeal is as to whether there was any evidence tending to show that the defendant had knowledge of or consented to the change in the date of the notes, or, after having knowledge thereof,- ever .ratified the saíne. There is no contention as to the law in the case.

It is conceded that if the change in the date of the notes was made by Brundage without the knowledge or consent of defendant, and that defendant never thereafterwards ratified such change, then the plaintiff is not entitled to recover in this action. Theymly evidence as to the knowledge or consent of defendant to the alteration in the notes is that of Brundage, the maker of the notes. He testified that Mr. Hefferlin did not authorize him to make any change in the dates or terms of the notes; that there was no contemplation of any necessity therefor at the time Hefferlin indorsed them. He also testified that Mr. Hefferlin has never at any time ratified the change of the date of said notes. The appellant contends that the defendant knew the terms of the contract for the fulfillment of which the notes were executed by Brundage and indorsed by the defendant, and, therefore, as the notes were changed to conform to the intention of the parties to said contract, that it cannot be contended that it was changed against the interest, or without the implied consent, of the defendant. But. in reply to this it is sufficient to say that the defendant was not a party to the original contract for the performance of which the notes were executed by Brundage. He was simply an accommodation indorser, as far as shown by the record. It is| also contended by the appellant that after the defendant received notice of protest of the notes for want of payment he I attempted to make terms with the holder for the payment thereof in the future, and from this fact the appellant contends that the defendant consented to or ratified the change in the dates of the notes. But it does not appear that at the time defendant received notice of protest of the notes, and when he was seeking to make terms for the payment thereafter, he knew that the notes had been altered. A careful inspection of the record and of all the testimony in the case does not disclose the fact that the defendant ever authorized the alteration in the notes, or ever by word or act ratified the same after the alteration was made. In fact the positive evidence is all to the effect that the defendant did not authorize such alteration, and that he has not at any time in any manner ratified the same.

We are therefore of opinion that .there was no error in the action of the court in instructing the .jury, on the evidence offered by the plaintiff, to return a verdict for the defendant. The judgment appealed from is therefore affirmed.

Affirmed.

De Witt and Hunt, JJ., concur.