Cole v. Hills , 44 N.H. 227 ( 1860 )

Sargent, J.

An immaterial alteration, which does not vary the meaning of an instrument, does not avoid it, though made by the party claiming under it. Burnham v. Ayer, 35 N. H. 354, and cases cited. Alterations in deeds are immaterial where neither the rights nor interests, duties nor obligations, of either of the parties are in any manner affected or changed. Smith v. Crocker, 5 Mass. 538. An alteration or insertion is immaterial, if it is the insertion only of what the law would imply, or the correcting of a mistake, as in such case the assent of the maker or obligor will be presumed. Bowers v. Jewell, 2 N. H. 543; Burnham v. Ayer, supra, and authorities.

In the case before us the alteration was only the correction of a mistake, the erasing a middle letter in the name of the payee, which did not belong there; and the case finds that the promissor did not know whether it belonged there or not, though he wrote the original noigPand intended to make it payable to this plaintiff. Nor were the rights or obligations of any party affected by the alteration. We think this must be held to be an immaterial alteration, to which the assent of the defendant would be presumed, even though made by the payee after the delivery of the note to him. The note was therefore properly admitted in evidence, without any explanation of the alteration, or any proof as to when it was made; and the exception that the verdict was against the weight of evidence on the other issue, becomes immaterial.

We see, therefore, that the second ruling was only too favorable to the defendant. The court ruled that the alteration was a material one, and, therefore, if it had been made by the payee since its delivery, it would avoid the note. The defendant can not object that the court ruled too strongly in his favor. But supposing that the alteration had been a material one, as it was held to be by the court, still the ruling would have been perfectly proper, allowing the note to go to the jury in the first instance as evidence. For although in this State we hold the presumption to be that an alteration, if unexplained by evidence, or by circumstances, or the appearance of the paper itself, was made after the execution and delivery of the instrument, yet the whole question is for the jury; not only the fact as to whether there has been any alteration at all, where there is doubt upon that point, but also the time when the alteration was made; whether before, at the time of, or subsequent to its execution and delivery; by whom it was made, and in certain cases whether fraudulently made or otherwise. The presumption is only one of fact, to be made by the jury, and not one of law, to be applied by the court. Bowers v. Jewell, 2 N. H. 543.

In Maine and in many other States it is held that the presumption will be, in the absence of all proof or circumstances tending to show how the facts were, that the alteration was made before the execution of the instrument. Gooch v. Bryant, 1 Shep. 390. And in "Vermont it is held in the like case that the presumption should be that the alteration was made at the time of the execution, and it is said that this is according to the rule of the common law. Beaman v. Russell, 20 Vt. 205. But it is held in both these cases that the whole question is one for the jury upon all the facts, to settle where the alteration was made.

In New-York the courts hold the doctrine nearly the same as in this State. In Jackson v. Osborn, 2 Wend. 559, it is said that where nothing appears but the fact of an erasure or interlineation in a material part of the deed, of which no notice is taken at the time of the execution, it is a suspicious circumstance, which requires some explanation by the party producing it; and it is the province of the jury to say whether the explanation is satisfactory. To the same effect is Jackson v. Jacoby, 9 Cow. 125, and Herrick v. Malin, 22 Wend. 388. But in Smith v. McGowan, 3 Barb. S. C. 404, it is held, that although an alteration appearing on the face of the deed is a suspicious circumstance, requiring explanation, yet it is not enough to exclude the instrument when offered as evidence, and though ink of different colors was used in the same deed, and though there was an erasure of one name and the substimtion of another as grantee, yet that these circumstances would not be enough to authorize the court as matter of Jaw to exclude the instrument as evidence.

It is held in Massachusetts (Ely v. Ely, 6 Gray 439) that there is no legal presumption either way as to the time when the alteration was made, but that the burden of proof wras on the plaintiff to show that it was made before the execution and delivery of the instrument. The alteration may be of such a character that he may safely rely upon the paper itself and the subject matter, as authorizing the inference that the alteration was made before the execution, or he may introduce some very slight evidence to account for the apparent alteration. See, also, the well considered opinion of Metcalf, J., in Wilde v. Armsby, 6 Cush. 314.

An alteration in a deed may be of such a kind and made in such a way as to explain itself, and remove all doubts from the minds of the jury, without any other evidence. • Some alterations may be greatly to the disadvantage of the holder or party setting up the instrument. Shall there be the same presumption that he made the alteration in that case, as in a case where the alteration was greatly to his advantage? That would hardly be claimed. So when the instrument may have been in the possession of some third person ever since its execution, and when the party now claiming under it has had no opportunity to erase or alter it.

It seems to us, then, that the proper rule is, that the instrument, with all the circumstances of its nature, its history, the appearance of the alteration, the possible or probable motives to the alteration, or against it, on the part of all persons connected with it, or in whose possession it may have been, and the effect of the alteration upon the rights and obligations of the parties, respectively, ought to be submitted to the jury, who should find from all these whether the alteration was made before or after its execution, and if after, whether it was with the assent of the adverse party, and consequently whether it rendered the instrument invalid or not. ■Whether the hand-writing of the alteration is the same with the body of the instrument, whether it is the same with that of the signature, whether the ink is the same or different, whether, from the appearance, the body of the instrument and the alteration were written at the same time or at different, times, whether the party-claiming or the party sought to be charged is to be benefited by it, whether the alteration was made before or after its execution, and if after, by whom, and for what purpose, are all questions of fact for the consideration of a jury. It could serve no good practical purpose for the court to go into these inquiries first, to determine whether a party has made a prima facie case.

Upon the usual proof of the execution of the instrument, it should, without reference to the character of any alteration upon it, be admitted in evidence, leaving all testimony in relation to such alteration to be given to the jury, with proper instructions upon the facts in each case. Beaman v. Russell, 20 Vt. 205; Bailey v. Taylor, 11 Conn. 531. In ninety-nine cases in every hundred the jury would be able to settle the questions readily upon a preponderance of the evidence, where they should consider the paper in connection with all the circumstances above stated. But if they should not be able to do so, and could not find any preponderance of the evidence as to when the alteration was made, or if there is an entire absence of evidence and of circumstances, both in the instrument and in the evidence aliunde, from which an inference can be legitimately drawn as to the time when it was actually made, then the presumption arises that the alteration was made after the execution of the instrument; and this is a presumption of fact which the jury are to make, under proper instructions from the court, where they shall be unable to find the fact from any evidence or circumstances in the case. That is clearly the doctrine of our decisions. Hills v. Barnes, 11 N. H. 395; Burnham v. Ayer, 35 N. H., supra.

The result of the application of the rule as held in New-York, in Massachusetts, and in this State, will thus be seen to be the same; and whether it be said that the presumption is against the plaintiff, or that the burden of proof is upon him, it amounts to the same thing, since in both cases the instrument is to be used as evidence, and may afford sufficient evidence in itself to rebut and overcome the presumption in one case, or to make a prima facie case for the plaintiff in the other.

The jury found that there was no contract with the principal to extend the time of payment of the note without the consent of the surety, and the usurious contract is void by our law only to the extent of the usury. Willie v. Green, 2 N. H. 338.

As surety, the defendant might have pleaded the usury and had three times the amount of the usury deducted; but as he did not, he stands as the principal would under similar circumstances, which would be to have the usury deducted, or in case he has paid it to recover it back.- The defendant in this case has had the full benefit of this deduction, and he has no farther cause of complaint. Richmond v. Standclift, 14 Vt. 258; Mead v. Merrill, 30 N. H. 472.

There must be

Judgment on the verdicL