Material and Immaterial Alterations.

T was laid down in Pigot's Case 2 that even an immaterial altera

IT

tion if made by the obligee avoids a deed. But in Sanderson v. Symonds, the English court refused to apply the rule to a policy of insurance, and in Aldous v. Cornwell this resolution in Pigot's Case was dissented from. It has been followed in some cases in this country, but most of them were decided a number of years ago, and no such severe rule is generally in force. As has been shown, even material alterations by the obligee, when innocently made, do not bar the obligee's rights. This must be true a

1 Continued from 18 HARV. L. REV. 105.

2 Ante, p. 105.

8 1 Brod. & Bing. 426.

4 L. R. 3 Q. B. 573.

Herdman v. Bratten, 2 Har. (Del.) 396; Johnson v. Bank, 2 B. Mon. 310, 311; Wickes v. Caulk, 5 Har. & J. 36; Haskell v. Champion, 30 Mo. 136; First Bank v. Fricke, 75 Mo. 178; Hord v. Taubman, 79 Mo. 101; Kelly v. Thuey, 143 Mo. 422; Bailey v. Gilman Bank, 99 Mo. App. 571; Vanauken v. Hornback, 2 Green (N. J.) 178; Wright v. Wright, 2 Halst. 175; Jones v. Crowley, 57 N. J. L. 222; Jackson v. Malin, 15 Johns. 293; Nunnery v. Cotton, 1 Hawks 222; Morris v. Vanderen, 1 Dall. 64; Crockett v. Thomason, 5 Sneed 342, 344.

• Ante, p. 115.

fortiori of immaterial alterations. And the prevailing doctrine is that no immaterial alteration will affect rights and liabilities under a writing, irrespective of the person by whom the alteration was made or his purpose in making it.1

The following alterations have been held material: erasing the obligee's name and substituting the name of another as obligee; 2 changing the name of the obligor in a deed, who in fact signed as agent but did not so indicate on the deed, to the name of the principal; or changing the signature of an obligor so as to make the obligation purport to be that of a corporation or firm 5 instead of an individual, or that of an individual instead of a corporation, or that of a surety instead of a principal.7

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1 First Bank v. Weidenbeck, 97 Fed. Rep. 896, 897 (C. C. A.); Prim v. Hammel, 134 Ala. 652; Nichols v. Johnson, 10 Conn. 192; Reed v. Kemp, 16 Ill. 445; Ryan v. First Bank, 148 Ill. 349; Lisle v. Rogers, 18 B. Mon. 528; Tranter v. Hibbard, 108 Ky. 265; Cushing v. Field, 70 Me. 50; Moye v. Herndon, 30 Miss. 110; Burnham v. Ayer, 35 N. H. 351; Robertson v. Hay, 91 Pa. 242; Note Holders v. Funding Board, 16 Lea 46.

2 Sneed v. Sabinal Co., 71 Fed. Rep. 493, 73 Fed. Rep. 925 (C. C. A.); Horst v. Wagner, 43 Ia. 373; Bell v. Mahin, 69 Ia. 408; Horn v. Newton Bank, 32 Kan. 518; Dolbier v. Norton, 17 Me. 307; Stoddard v. Penniman, 108 Mass. 366; Aldrich v. Smith, 37 Mich. 468; German Bank v. Dunn, 62 Mo. 79; Robinson v. Berryman, 22 Mo. App. 509; Erickson v. First Bank, 44 Neb. 622; Cumberland Bank v. Penniman, I Halst. 215; Gillette v. Smith, 18 Hun 10; Davis v. Bauer, 41 Ohio St. 257; Hoffman v. Planters' Bank, 99 Va. 480. See also Park v. Glover, 23 Tex. 469; Broughton v. Fuller, 9 Vt. 373. Contra, Latshaw v. Hiltebeitel, 2 Penny. 257.

Changing the name of a special indorsee in a note is therefore material, Grimes v. Piersol, 25 Ind. 246, or adding a name of another person on a railroad mileage book as one entitled to ride. Holden v. Rutland R. Co., 73 Vt. 317. But changing the name of the insured in a policy from the name of the agent of a mortgagee to the name of the mortgagor, the loss being made payable, both before and after the alteration, to the mortgagee, was held immaterial since it effected no material change in the ultimate rights under the policy. Martin v. Tradesmen's Ins. Co., 101 N. Y. 498.

The addition of the word "junior" to the name of the grantee in a deed was held immaterial, as the only effect was to designate more clearly the grantee actually intended. Coit v. Starkweather, 8 Conn. 289. So the addition of "with the will annexed," after the word “administrator." Casoni v. Jerome, 58 N. Y. 315.

But otherwise of an addition of a designation, which makes the payee in effect different. Hodge v. Farmers' Bank, 7 Ind. App 94 (cashier); First Bank v. Fricke, 75 Mo. 178 (president); York v. Janes, 43 N. J. L. 332 (collector).

8 North v. Henneberry, 44 Wis. 306. But erasure of an initial of the grantor's name in a deed is immaterial, where no change in the person is thereby intended or indicated. Banks v. Lee, 73 Ga. 25. See also Chadwick v. Eastman, 53 Me. 12. 4 Sheridan v. Carpenter, 61 Me. 83.

5 Montgomery v. Crossthwait, 90 Ala. 553 (though the alteration was made by one having no power to bind the firm); Haskell v. Champion, 30 Mo. 136.

6 Texas Printing Co. v. Smith, 14 S. W. Rep. 1074 (Tex. App.). 7 Laub v. Paine, 46 Ia. 550.

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Erasing the name of a joint or prior obligor,1 and changing the amount, time of payment, place of payment, or rate of interest are obviously material, as are the addition of words of negotiability,2 or of a clause requiring payment in gold; a waiver of demand and notice written over a blank indorsement; the insertion of words of guaranty over such an indorsement, unless the indorser's intention was in fact to be liable as a guarantor; 6 the addition of other property to that described in a deed or mortgage; the insertion. in a mortgage of a statement that it was given to secure other debts besides that for which it was in fact given; the insertion in a bond for title of a provision that the vendee shall have immediate pos

1 Smith v. United States, 2 Wall. 219; Gillett v. Sweat, 6 Ill. 475; State v. Griswold, 32 Ind. 313; State v. Craig, 58 Ia. 238; Bracken Co. v. Daum, 80 Ky. 388; State v. Findley, 101 Mo. 217; Blanton v. Commonwealth, 91 Va. 1.

But not if the obligor whose name was erased was an infant and had repudiated his contract. Young v. Currier, 63 N. H. 419.

2 Many authorities as to such changes in negotiable paper are collected in 1 Ames Cas. Bills and Notes 447, 448; 2 Century Digest 241 seq.

In Tranter v. Hibbard, 108 Ky. 265, a note was altered by writing the word "fixed" after the date of payment, which is equivalent to" without grace." By the law of Kentucky such negotiable paper only as is discounted at a bank is entitled to grace. The note in question never was so discounted, and the court therefore held the alteration immaterial, though admitting the note might have been discounted. The case seems wrong. The alteration purported to give the payee an added right to discount the note without entitling the maker to grace. The fact that the payee did not exercise this right cannot make any difference.

Similarly changing the penal sum in a bond. Howev. Peabody, 2 Gray 556; Board v. Gray, 61 Minn. 242.

3 Hanson v. Crawley, 41 Ga. 303; Bridges v. Winters, 42 Miss. 135; Foxworthy v. Colby, 64 Neb. 216; Church v. Howard, 17 Hun 5; Darwin v. Rippey, 63 N. C. 318; Wills v. Wilson, 3 Oreg. 308; Bogarth v. Breedlove, 39 Tex. 561.

4 Andrews v. Simms, 33 Ark. 771; Davis v. Eppler, 38 Kan. 629; Farmer v. Rand, 16 Me. 453; Schwartz v. Wilmer, 90 Md. 136; Harnett v. Holdrege, 97 N. W. Rep. 443 (Neb.).

But otherwise, if the indorser is also the maker, and hence in no event entitled to demand or notice. Gordon v. Third Bank, 144 U. S. 97.

In Schwartz v. Wilmer, 90 Md. 136, the words inserted were "protest waived." The court assumed that this was equivalent to a waiver of demand and notice, and that "it converted the contingent liability of the indorser into an absolute liability." This seems wrong. Waiver of protest does not mean waiver of demand and notice. It did not even appear that the note was a foreign note, and as such entitled to protest.

5 Robinson v. Reed, 46 Ia. 219; Belden v. Ham, 61 Ia. 42; Clawson v. Gustin, 2 South. 947; Orrick v. Colston, 7 Gratt. 189.

6 Iowa Valley Bank v. Sigstad, 96 Ia. 491; Levi v. Mendell, 1 Duv. 77.

7 Powell v. Pearlstine, 43 S. C. 403; Bowser v. Cole, 74 Tex. 222. See also Moelle

v. Sherwood, 148 U. S. 21. Cf. Burnett v. McCluey, 78 Mo. 676.

8 Carlisle v. People's Bank, 122 Ala. 446; Johnson v. Moore, 33 Kan. 90.

1

session; the insertion or alteration of the date if that results in altering the legal effect of the instrument, as by changing the day of maturity; the addition or cancellation of a seal after the signature of an obligor, unless a seal would in no way alter the legal effect of the document.5

An alteration is none the less material because the change in the contract is advantageous to the obligor. Thus where a later day of payment is substituted the obligation is avoided. So where a smaller amount is substituted in an obligation, or where the specified rate of interest is altered to a lower rate, or where the name of a joint obligor or co-surety is added, or of a prior obligor.10 The addition of a collateral guaranty does not, however,

1 Kelly v. Trumble, 74 Ill. 428.

2 Hirschman v. Budd, L. R. 8 Ex. 171; Inglish v. Breneman, 5 Ark. 377; Wyman v. Yoemans, 84 Ill. 403; Hamilton v. Wood, 70 Ind. 306; McCormick Co. v. Lauber, 7 Kan. App. 730; Lisle v. Rogers, 18 B. Mon. 528; Britton v. Dierker, 46 Mo. 591; McMurtrey v. Sparks, 71 Mo. App. 126; Bowers v. Jewell, 2 N. H. 543; Crawford v. West Side Bank, 100 N. Y. 50; Miller v. Gilleland, 19 Pa. 119; Taylor v. Taylor, 12 Lea 714.

3 State v. Smith, 9 Houst. 143; Morrison v. Welty, 18 Md. 169; Rawson v. Davidson, 49 Mich. 607; Fred Heim Co. v. Hazen, 55 Mo. App. 277; Biery v. Haines, 5 Whart. 563; Vaughan v. Fowler, 14 S. C. 355.

4 Porter v. Doby, 2 Rich. Eq. 49; Organ v. Allison, 9 Baxt. 459; Piercy v. Piercy, 5 W. Va. 199.

5 Truett v. Wainwright, 9 Ill. 411.

6 Wood v. Steele, 6 Wall. 80; Wyman v. Yoemans, 84 Ill. 403; Post v. Losey, 111 Ind. 74; McCormick Co. v. Lauber, 7 Kan. App. 730; First Bank v. Payne, 19 Ky. L. Rep. 839. But see contra, Union Bank v. Cook, 2 Cranch C. C. 218.

7 Prim v. Hammel, 134 Ala. 652; Johnston v. May, 76 Ind. 293. See also Doane v. Eldridge, 16 Gray 254.

8 Post v. Losey, 111 Ind. 74; Board v. Greenleaf, 80 Minn. 242; Whitmer v. Frye, Io Mo. 348. But see contra, Burkholder v. Lapp's Ex., 31 Pa. 322.

9 Gardner v. Walsh, 5 E. & B. 83; Taylor v. Johnson, 17 Ga. 521; Henry v. Coats, 17 Ind. 161; Bowers v. Briggs, 20 Ind. 139; Houck v. Graham, 106 Ind. 195; Hall's Adm. v. McHenry, 19 Ia. 521; Hamilton v. Hooper, 46 Ia. 515; Berryman v. Manker, 56 Ia. 150; Sullivan v. Rudisill, 63 Ia. 158; Shipp v. Suggett, 9 B. Mon. 5; Singleton v. McQuerry, 85 Ky. 41; Lunt v. Silver, 5 Mo. App. 186; Wallace v. Jewell, 21 Ohio St. 163; Harper v. Stroud, 41 Tex. 367. But see contra, Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577, 590; Gano v. Heath, 36 Mich. 441; Union Banking Co. v. Martin's Estate, 113 Mich. 521; Standard Cable Co. v. Stone, 35 N. Y. App. Div. 62, 65.

The alteration is none the less material if the added signature is forged. Farmers' Bank v. Myers, 50 Mo. App. 157; Harper v. Stroud, 41 Tex. 367.

If the addition is without the knowledge of the obligee, it is an alteration by a stranger and hence in this country would generally have no effect. Anderson v. Bellenger, 87 Ala. 334; Ward v. Hackett, 30 Minn. 150; Standard Cable Co. v. Stone, 35 N. Y. App. Div. 62.

10 Haskell v. Champion, 30 Mo. 136.

discharge the principal debtor,1 for the addition neither increases nor diminishes his immediate liability or his ultimate equitable liability. The same is true of the erasure of the name of a collateral guarantor.2

If, however, a surety's name is added in such a way that he incurs or purports to incur at law a joint obligation with others previously bound by the instrument, the alteration seems technically a material one, though his equitable liability was one of suretyship, for the alteration if effective would create a new and different obligation at law on the part of the previous obligors. They could be sued jointly with the surety. The answer adopted in one decision to this reasoning is that the surety having signed after delivery of the note was not in fact a joint maker, and that as the original maker could effectively object to the joinder of the new signer the former's obligation remained unaltered. But this is unsound. An alteration to which he has not consented never binds an obligor. He is discharged not because an alteration is in legal effect wrought upon his obligation, but because it purports to be; and in the case in question the obligation of the defendant was on the face of the instrument changed to a joint obligation. Nevertheless, on account of the hardship of the case the addition has in such a case frequently been held immaterial. are many cases enforcing the strict rule.5

But there

1 Ex parte Yates, 2 De G. & J. 191; First Bank v. Weidenbeck, 97 Fed. Rep. 896 (C. C. A.); Burnham v. Gosnell, 47 Mo. App. 637; Wallace v. Jewell, 21 Ohio St. 163, 172; Hutches v. J. I. Case Co., 35 S. W. Rep. 60 (Tex. Civ. App.). See a fortiori cases in note 4, infra. Cf. Oneale v. Long, 4 Cranch 60.

2 First Bank v. Weidenbeck, 97 Fed. Rep. 896 (C. C. A.); Broughton v. West, 8 Ga. 248; People v. Call, 1 Denio 120; Huntington v. Finch, 3 Ohio St. 445.

* McCaughey v. Smith, 27 N. Y. 39. See also Ex parte Yates, 2 De G. & J. 191; Bowser v. Rendell, 31 Ind. 128.

Ex parte Yates, 2 De G. & J. 191; Mersman v. Werges, 112 U. S. 139; Montgomery Railroad v. Hurst, 9 Ala. 513; Rudulph v. Brewer, 96 Ala. 189 (overruled); Bowser v. Rendell, 31 Ind. 128; Taylor v. Acom, I Ind. Ty. 436; Stone v. White, 8 Gray 589; Miller v. Finley, 26 Mich. 249; Barnes v. Van Keuren, 31 Neb. 165; Royse v. State Bank, 50 Neb. 16; McCaughey v. Smith, 27 N. Y. 39; Hecker v. Mahler, 64 Ohio St. 398. See also Ryan v. First Bank, 148 Ill. 349; Heath v. Blake, 28 S. C. 406.

Gardner v. Walsh, 5 E. & B. 83; First Bank v. Weidenbeck, 81 Fed. Rep. 271 (reversed, 97 Fed. Rep. 896); Brown v. Johnson, 126 Ala. 93 (overruling Montgomery R. Co. v. Hurst, 9 Ala. 513, and, it seems, Rudulph v. Brewer, 96 Ala. 189); Soaps v. Eichberg, 42 Ill. App. 375; Bowers v. Briggs, 20 Ind. 139; Nicholson v. Combs, 90 Ind. 515; Dickerman v. Miner, 43 Ia. 508; Hamilton v. Hooper, 46 Ia. 515; Sullivan v. Rudisill, 63 Ia. 158; Browning v. Gosnell, 91 Ia. 448; Rhoades v. Leach, 93 Ia. 337; Shipp v. Suggett, 9 B. Mon. 5; Singleton v. McQuerry, 85 Ky. 41; Lunt