McCaughey v. . Smith , 27 N.Y. 39 ( 1863 )

The question of the manner or effect of the insertion of the place of payment is not before us. The referee has found, as a fact, that Smith indorsed the note, having no place of payment stated in it, and that it was to be filled up with the name of a bank in Erie, Pa., and it was so filled up with the name of a banking house at that place. There is no exception to this finding, and it disposes of the objection that the place of payment was inserted in the note without authority. So also the question of notice of non-payment of the note, if it was open to the defendant upon the present answer, is disposed of in the same way.

The main question in the case is the effect upon the indorser's liability of the addition of Hungerford's name to the note. It is certainly the result of the later authorities, that the addition of another maker to a note made by one or more parties is a material alteration of the contract. Instead of being the several or the joint obligation of the original party or parties, it becomes the joint or joint and several undertaking of different contractors. It is not material whether the change be prejudicial or the contrary: it is sufficient that it is material. (Parsons on Bills and Notes, vol. 2, p. 556, Gardner v. Walsh, 5 El. B., 82.) In the case of Chappell v. Spencer (23 Barb., 584), the doctrine was applied in its strictest form, to vitiate a negotiable note whose holder had added his name as joint maker, instead of indorsing it, upon negotiating and obtaining the money upon it.

There is a difference between the present case and these, however, which must not be lost sight of. The referee finds in this case that the note was transferred to the plaintiff for goods sold, in its original condition, as the note of Hall, indorsed by Smith, and as declared upon in the complaint. Afterwards Hungerford, at the request of the plaintiffs, for the purpose of adding the security of his name, subscribed his name to the note. This made no alteration of the terms of the contract, of course, as to the amount, or time or place of payment. It was not adding a joint maker, because the note had been made and negotiated. It was subscribing to become security upon a note already made and negotiated. Hungerford was not named in the original contract, and was not a party to it. He made a new contract with the holders of the note, as security for the maker, after the contract of the maker was completed. I do not see how he could become a maker of a note already made and delivered. If he could be held at all, I think, it must have been by treating him as guarantor. If this were so, the case is out of the rule; for a guaranty of a note is not an alteration of it, or of the maker's contract on it. I therefore disagree with the conclusion of the Supreme Court on this point.

I am led to the conclusion that the order for a new trial should be reversed.

DENIO, Ch. J., DAVIES, WRIGHT and SELDEN, Js., concurred, without passing upon the question as to the character of Hungerford's liability.