Howe v. Spitzer

PER CURIAM:

This is a suit upon a note and was tried by the court, a jury being waived. The defense interposed was that the note had been altered.

The court found that the alterations had been made with the consent of the makers. That was a disputed question 'of fact, and we do not find that the finding of the trial court upon that issue is manifestly against the weight of the evidence.

So finding, the judgment should be affirmed, unless the defendants are right in the further contention which they make, to the effect that the alteration was not made according to the special erms of the consent but extended beyond it, and the rule is that the alteration of a negotiable instrument makes it void even though consent to an alteration be given if the alteration which is made is not strictly in accordance with the alteration to which consent was given.

The trouble with this contention is that the transaction in question did not constitute the alteration of a negotiable instrument. At the time the change was made there had been no delivery of the instrument so as to create an obligation on the part of the makers thereof; it was then no more than an offer to the Finance Company, and any change made in it was not an alteration of a negotiable instrument but a making of an original instrument, and the rule contended for has no application.

Funk, PJ, and Pardee, J, and Washburn, J, concur.