Watkins Medical Co. v. Harrison

Luke, J.

(After stating the foregoing facts.) The majority of the court think that the trial judge erred in overruling the plaintiff’s demurrer to the amended answer of the sureties. While the said answer alleges that “$1,794.02,” past indebtedness of Goen, was inserted in the contract after the sureties signed, it does not allege that the principal, Goen, was not due the plaintiff this amount at the time they signed the contract; and there is direct and positive evidence that-he did owe the plaintiff this amount at that time. Neither does the answer deny that the contract contained the provision that the principal for whom the defendants were sureties was, “at the termination of this agreement, to pay the whole amount then remaining unpaid,” whatever it might be. Neither does the answer deny that the surety clause, signed by the defendants, specified, as a part of the consideration for their signing, “the extension of the time of payment of the indebtedness due from him [Goen] to said company as therein provided.” Since the entire contract contemplated that there was some past indebtedness, and that the sureties were liable for whatever amount might be due by the principal, and they “unconditionally promise and guarantee the full and complete payment” thereof, and since the correctness of the amount alleged to have been inserted in the contract is not disputed, the insertion of the correct amount, if made, was not a material alteration of the contract, according to its reasonable intendment at the time it was signed. Furthermore, under the particular wording of this contract, it might reasonably be held that when the sureties signed it and turned it over to the principal Goen, they impliedly authorized the insertion of the correct amount of past indebtedness in the space provided therefor. In the case of Dr. Ward’s Medical Co. v. Wolleat, 199 N. W. 738, the signers of a surety contract, similar to the one now under consideration, set up as a defense that the contract was materially altered by filling in the amount of the existing indebtedness of the principal, after the execution of the contract, and claimed that this alteration discharged them from liability on the contract; and the Supreme Court of Minnesota in that case said: “The correct amount thereof was inserted in the blank space. This being so, the legal effect of the contract was not disturbed, even though we may concede that its evidentiary effect was enhanced. The contract itself was not made to speak a different language in legal effect. Its identity was not lost. The amount inserted being correct, it could do no harm. Such is not a material alteration. The insertion of the correct amount did not in the least disturb the equilibrium of their legal liability arising out of the contract as they executed it.” And in the case of Angle v. N. W. Life Ins. Co., 92 U. S. 330, it was held that “where a party to a negotiable instrument intrusts it to another for use as such, with blanks not filled up, such instrument so delivered carries on its face an implied authority to complete the same by filling up the blanks.”

Since the court erred in overruling the demurrer to the answer as amended, all the further proceedings were nugatory.

Judgment reversed.

Broyles, 0. and Bloodworlh, J., concur. Luke, J., dissents.