Brothers v. Rogers

• Decision Date: 22 October 1910
• Docket Number: 16,148
• Citation: 127 N.W. 1062,87 Neb. 716
• Parties: BLENKIRON BROTHERS, APPELLANT, v. WILLIAM H. ROGERS, APPELLEE
• Court: Nebraska Supreme Court

127 N.W. 1062

87 Neb. 716

BLENKIRON BROTHERS, APPELLANT, v. WILLIAM H. ROGERS, APPELLEE

No. 16,148

Supreme Court of Nebraska

October 22, 1910

APPEAL from the district court for Cedar county: GUY T. GRAVES JUDGE.Reversed.

REVERSED.

J. C Robinson, for appellant.

C. B Willey, contra.

OPINION

SEDGWICK, J.

The defendant sold a quantity of grain and made and signed a written memorandum of sale, in which "Blenkiron Grain Co." was named as the purchaser.The contract was delivered to this plaintiff.Afterwards the defendant refused to deliver the grain, and the plaintiff brought this action on the contract.There was a general demurrer to the petition, which was sustained, and the cause dismissed.The plaintiff has appealed.

In the petition the plaintiff alleges that the defendant sold and agreed to deliver to the plaintiff 2,500 bushels of oats, which was agreed upon between the parties, and that a memorandum of sale was reduced to writing and signed by the defendant, "and is now in words and figures following."Then followed the memorandum of sale, signed by the defendant, in which the name of the purchaser is "Blenkiron Bros., Inc." The petition then alleges that the plaintiff had been conducting said business as a corporation under the name of "Blenkiron Grain Co." and that a short time before the making of the contract the legal name of plaintiff's corporation was changed from "Blenkiron Grain Co." to "Blenkiron Bros., Inc.," but the "stockholders, officers, managers and the place or places and the general nature of the business transacted by the said corporation, Blenkiron Bros., remained and were the same as in the corporation called 'Blenkiron Grain Co.;'" and that at the time of making the memorandum the plaintiff's agent who prepared the same, by mistake or oversight, used a partly printed blank in which the plaintiff's name was by mistake printed "Blenkiron Grain Co.," and that the mistake in the name of the plaintiff was not discovered until after the memorandum was signed and delivered; that the grain was in fact sold to Blenkiron Bros. as both parties well knew and intended, and "in order to make said memorandum conform to the fact and the real intention of the parties, and for no other purpose, plaintiff caused said memorandum to be changed by erasing the words and letters 'Grain Co.' and inserting in the place thereof the words and letters, 'Bros., Inc.,' in the name of the purchaser as it appears in one place in said memorandum."

Some preliminary questions are presented, but the principal question discussed in the briefs is whether the said change of the name of the purchaser without the knowledge or consent of the maker of the instrument would relieve the defendant from liability thereon.There is an interesting statement of the origin and development of the law in regard to alterations of written instruments in a note under Woodworth v. Bank of America,10 Am. Dec. 239, 267(19 Johns.(N.Y.) 391), long regarded as a leading case.In that note immaterial alterations are defined to be "such merely verbal changes as do not vary the contract in any essential particular, as by the correction of obvious mistakes, or by inserting words which simply express the meaning of the instrument to be what the law would imply it to be without such words."The author states the following instances: "Inserting the words 'on demand' in a note in which no time of payment is specified, for it is payable on demand without those words ( Aldous v. Cornwell,L. R. 3 Q. B.(Eng.)573) correcting the figures in the margin to correspond with the body of the note (Woolfolk v. Bank of America, 10 Bush (Ky.) 504;Smith v. Smith,1 R.I. 398); or changing the words in the body to correspond with the marginal figures where the latter are correct and the mistake is accidental (Clute v. Small,17 Wend. (N.Y.) 238); correcting a date, as where a note was dated '1868,' by mistake, the true date being '1869'(Duker v. Franz, 7 Bush (Ky.) 273, 3 Am. Rep. 314).In general it is held that where the correction does not alter the legal tenor and effect of the instrument, or affect the liability of a party, it will be considered an immaterial alteration.Thus, where a maker, after indorsement, added 'payable before maturity, and interest on unexpired term, refunded, if so elect,' it was held the indorser was not discharged.Herrick v.Baldwin, 17 Minn. 209."The following additional instances in this state may be mentioned: Erasing indorsements of payments from the back of a note which had been indorsed by mistake.Lau v. Blomberg,91 N.W. 206, 3 Neb. Unoff. 124.Removing from a note the following words: "This note is given upon condition."Palmer & Orton v. Largent,5 Neb. 223.Interlining the words: "Interest at 6 per cent. on notes remaining over a year."Thompson Co. v.Baldwin, 62 Neb. 530.Indorsing by a notary on the back of a contract an extension of time of payment.Johnson v. Weber,70 Neb. 467, 97 N.W. 585.The addition of the name of an additional surety on a promissory note.Barnes v. Van Keuren & Floyd,31 Neb. 165, 47 N.W. 848;Royse v. State Nat. Bank,50 Neb. 16, 69 N.W. 301.Adding the words: "I will pay in cash any deductions made from said claim of $ 1,975 in full amount of said deductions."Fisherdick v. Hutton,44 Neb. 122, 62 N.W. 488.And, in other jurisdictions, changing the name of the payee by erasing the initial of the middle name.Cole v. Hills,44 N.H. 227.Inserting the words "or bearer" in a promissory note.Weaver v. Bromley,65 Mich. 212, 31 N.W. 839.Changing the name of the payee as written in the note from "Francis E. Derby...