Hartley & Co. v. Corboy

Opinion by

Mr. Justice Green,

Before the note in suit was offered in evidence, one of the plaintiffs, William Hartley, was examined as a witness on behalf of the plaintiffs, and testified to the circumstances in which the note was received and discounted. He said when the note was brought to them it “ was drawn for four months, ■with James Corboy as indorser.” He further said that they concluded they would not accept a note for four months, and they sent it back to Steckman, the maker, with a message that they would not renew the note for four months, but would for three months with an additional indorser. He also testified that when it came back it was written just as it was at the trial, and was accepted “ just as it was brought in.” At the time of the trial, the words “ ninety days ” were written over the words “ four months,” and the name of another indorser, C. P. Calhoun, was added on the back of the note under the name of James Corboy.

The witness was asked: “ Q. You accepted this note as a' ninety days’ note, I believe ? A. Yes; as ninety days. It looked like ninety days and it looked like four months; we accepted the note, and it did not make any difference to us whether it was ninety days or four months.....Q. When you first saw the note it was drawn ‘ four months after date,’ was it not? A. Yes, sir. Q. And it had on the back there the indorsement of James Corboy? A. Yes, sir. Q. When it was brought back to you the second time it was changed from four months to ninety days ? A. At ninety days we said we would have taken money for it. Q. And the additional name of C. P. Calhoun was on the back of it? A. Yes, sir.”

The witness also testified that he wrote the name C. P. Calhoun on the face of the note, that he made no inquiry how the change was made in the time of payment of the note, and that he took the note without inquiry.

It was thus affirmatively proved by the plaintiffs, and not at all disputed, that the fact of the alteration was known to them when they took the note, and, in respect of the name of the additional payee, it was altered by one of them. It only remains to be said that the alteration was perfectly apparent on the face of the note, as the words “ four months,” with the words “ ninety days ” written over them, were then, and still are, plainly visible. As the plaintiffs themselves declared, and sent word to the maker, that they would not discount the note at four months, but would do so at ninety days with an additional indorser, and as they had full knowledge of the change in the wording of the note, the alteration must be regarded as having been made at their suggestion. In these circumstances the case comes most clearly within the operation of all our decisions upon this clas3 of cases, and it is at once manifest that, when the note was offered in evidence without any explanation of the visible and material alteration, it should have been promptly rejected.

In Simpson v. Stackhouse, 9 Pa. 186, we said: “ He who takes a blemished bill or note, takes it with its imperfections on its head. He becomes sponsor for them, and, though he may act honestly, he acts negligently. But the law presumes against negligence as a degree of culpability, and it presumes that he had not only satisfied himself of the innocence of the transaction, but that he had provided himself with the proofs of it to meet a scrutiny he had reason to expect.” In this case the plaintiffs have themselves proved their own negligence so that it must be regarded as an established fact.

In Heffner v. Wenrich, 32 Pa. 423, we said: “ The note should not have been admitted, except in connection with evidence tending to explain the alteration, and then it should have been referred to the jury to say whether the alteration, if any, was made before or after the defendant parted with the note.”

In Hill v. Cooley, 46 Pa. 259, we held that, in an action upon an altered negotiable note by an indorsee against the maker, the burthen of proof that the alterations were lawfully made is upon the holder. To the same effect are Clark v. Eckstein, 22 Pa. 507; Miller v. Reed, 27 Pa. 244; Paine v. Edsell, 19 Pa. 178.

In Fulmer v. Seitz, 68 Pa. 237, the same doctrine was held, and also, “ that one who makes a voluntary and unauthorized alteration of a written contract, and insists upon it by going to trial to recover upon the altered state of the instrument, has no locus penitentice, which, on his failure to establish his right to recover, will enable him to undo the wrong at the' trial, and ■to stand as one who has made an innocent mistake and never has insisted upon his right to enforce it.”

In Neff v. Horner, 63 Pa. 327, we said that “A voluntary alteration of a bond, note or other instrument under seal, in a material part, to the prejudice of the obligor or maker, avoids it unless done with the assent of the parties to be affected by it. Such a wilful act differs from spoliation by a stranger, or accidental alteration done through mistake, where the instrument remains effectual in law as it was before alteration. In respect to bills, notes and other commercial paper, the rule is even more stringent, the law casting on the holder the burthen of disproving an apparent, material alteration on the face of the paper. . . . The ground of the .rule is public policy, to insure the protection of the instrument from fraud and substitution.”

In Craighead v. McLoney, 99 Pa. 211, Chief Justice Sharswood said: “ My own opinion is that the courts have gone far enough in permitting writings to be tampered with...... It is evident that any tampering with the instrument which imposes upon the party a burden or a peril, which he would not else have incurred, is an injury to him, and therefore material. It is a mistake to infer that whether .the pecuniary liability is increased, or the time of payment changed, is the test. In these respects the party may be no worse, yet his rights and •remedies on the instrument may be seriously affected. Wherever this is so, it does not matter that the alteration was entirely honest, with no fraudulent intent.” The same doctrine was held and enforced in Marshall v. Gougler, 10 S. & R. 164.

In the present ease not the slightest attempt was made to show that the alteration in the time of payment was made with the knowledge or consent of James Corboy, the defendant. In point of fact, lie was examined as a witness and testified that he had no such knowledge, and no testimony in contradiction of this was given. The whole testimony presented the case of a deliberate attempt to change and alter the contract of indorsement, made by the defendant, upon a note payable at four months to one payable at ninety days, entirely without his consent. It matters not the least whether the alteration was made innocently or in the belief that such a change could lawfully be made without the consent of the indorser. It is against public policy to permit such things to be done, and the law will not tolerate it. The facts in the case of Kountz v. Kennedy, 63 Pa. 187, have no analogy to those of this case. This indorser might have been willing to indorse a note at four months and not willing to indorse one at three months, and as there is not the slightest evidence that he ever agreed or consented to the alteration in the contract he did make, or even had knowledge of it, the indorsement is invalidated as to him, and there can be no recovery against him. The assignments of error are all sustained. Judgment reversed.