Miller v. Reed

• Citation: 27 Pa. 244
• Parties: Miller versus Reed.
• Decision Date: 01 January 1857
• Court: United States State Supreme Court of Pennsylvania

Page 244

27 Pa. 244

Miller versus Reed.

Supreme Court of Pennsylvania.

ERROR to the District Court of Allegheny county.

G. P. Hamilton and Miller, for plaintiff in error.—It is conceded that the alteration of commercial paper in any material respect avoids it: Simpson v. Stackhouse, 9 Barr 186; Paine v. Edsell, 7 Harris 178. But it is submitted whether this if an interlineation is a material alteration of the note.

It could only be material in view of the death of one of the drawers; then he would be discharged in law but not in equity. The debt may have been contracted for the joint benefit of both drawers. Long v. Kepple, 1 Binn. 123; Stiles v. Brock & Co., 1 Barr 215. If the liability survives in this state against the estate of the deceased drawer, there does not appear to be any good reason why his personal representative may not be joined in an action against the survivor.

When the alteration is patent, it is incumbent on the party offering to explain it: 1 Green. Ev. § 564; 9 Barr 186.

Although the authorities preponderate in favour of the presumption that the alteration was made after signing, yet it does not meet with universal assent: Bank v. Hall, 1 Halst. 215; Clark v. Rogers, 2 Greene 147; Prevost v. Gratz, 6 Wheat. 481; Cowan & Hills, Notes to Phil. on Ev. part 2, 299-300; Davis v. Jenny, 1 Met. 221. The presumption is not a strong one: Prevost v. Gratz, 6 Wheat. 481. And may be removed by slight circumstances: Heffelfinger v. Sheetz, 14 S. & R. 44; Carris v. Tattersall, 2 Man. & Gr. 860; 3 Scott, N. R. 257.

The note should have been admitted and the jury allowed to determine when the interlineation was made. If made in the same handwriting and with the same pen and ink as the filling up of the body, the jury would have been justified in presuming it to have been done before signing. That they may establish its character from an inspection of the instrument alone, is fully established by the authorities: 1 Green. Ev. p. 697, note 1; Glanville v. Paine, Ch. Rep. 18; Bank v. Hall, 1 Halst. 215; Ranken v. Blackwell, 2 John. Cas. 198; Green. Ev. 698, § 598; Taylor v. Masley, 6 C. & P. 273; Van Horn v. Dorrance, 2 Dall. 304; Hills v. Barnes, 11 N. H. Rep. 227; Bailey v. Taylor, 11 Conn. 531; Goch v. Bryant, 1 Shepl. 386; Crabtree v. Clark, 7 Id. 337; Wicks v. Couch, 5 H. & J. 41; Patten v. Shaw, 3 Den. 238.

The evidence of the experts should have been admitted. They may testify from a comparison with the filling up of the body of the note admitted to be genuine: 1 Green. § 581; McCorkle v. Binns, 5 Binn. 340; Lancaster v. Whitehall, 10 Ser. & R. 110; Baker v. Haines, 6 Wh. 284; 3 Green. Ev. § 106, note.

J. I. Kuhn, for defendant in error.—The alteration of the note from a joint to a joint and several one, is well settled to be a material one. The law is so laid down in Ch. on Bills, 183. The same is decided in Perring v. Hone, 4 Bing. 28 (13 E. C. L. 328.) The cases cited by plaintiff's counsel from 1 Binn. 123 and 1 Barr 215, disprove rather than support the positions assumed by them. Was it made before or after the execution of the note? It is conceded where the alteration is apparent on the face of a negotiable instrument, that the presumption is that it was made after execution, and the burden of proving that it was made before, rests upon the plaintiff: Simpson v. Stackhouse, 9 Barr 186; Paine v. Edsell, 7 Harris 178; Johnson v. The Duke of Marlborough, 2 Stark. 313 (3 E. C. L. 424); Herman v. Dickenson, 5 Bing. 183 (15 E. C. L. 409); Knight v. Clements, 8 A. & E. 215, (35 E. C. L. 377).

It is true, that in the elementary books some cases are cited as supporting the contrary doctrine, but on examination they will be found either not to sustain it, or be supported by very unsatisfactory reasons.

The plaintiff contends, that the note should have been submitted to the jury, to judge from inspection when the alteration was made. This is precisely what the court below was reversed for in Simpson v. Stackhouse, 9 Barr 186.

The unanswerable argument of Chief Justice GIBSON, referred to in Paine v. Edsell, renders it only necessary to refer to it. This was the very point decided in Knight v. Clements, 35 E. C. L. 377, and determined that it could not be submitted to the jury to find from inspection whether the alteration was made before or after execution. This case overruled Taylor v. Mosely, 6 C. & P. 273, and the other cases cited by plaintiff in error. Whether any alteration has been made, may be referred to the jury, but not the time when an apparent alteration has been made: Davis v. Jenny, 1 Met. 221. The very same is ruled by this court in a recent case: Clark v. Eckstein, 10 Harris 507.

The evidence of the experts offered could have no tendency to fix the time when the interlineation was made. That it was in the same handwriting, with the same pen and ink, would not prove that it was done before execution.

The opinion of the court was delivered by WOODWARD, J.

It is too well settled to be questioned that any material alteration of commercial paper, unaccounted for by him who holds it, is fatal to it. The maker of a note cannot be expected to account for what may have happened to it after it left his hands; but a payee or endorsee who takes it, condemned and discredited on the face of it, ought to be prepared to show what it was when he received it: Simpson v. Stackhouse, 9 Barr 188.

But was the alteration in this case material? It consisted, if indeed it was an alteration, in interlining the words "or either of us." The note was a printed form with the blanks filled up with the pen, and the interlineation bears every appearance of having been written by the same hand and at the same time as the other written parts, but still it is an interlineation, and makes the paper a joint and several, which, without it, would have been a joint note. The payee and endorsee being both dead, the plaintiff, the personal representative of the latter, has no means of accounting for it, and if the words were inserted after the note was delivered and are material — that is, if there be any longer in Pennsylvania a legal difference between a joint note and a note joint and several — the defence must prevail.

The Acts of Assembly of 6th April, 1830, and 11th April, 1848, Purdon 466, seem to have been intended to obliterate the common law distinctions on this subject, and being remedial statutes are to be liberally construed: 5 Barr 401.

The classes of cases provided for by them are —

1. Where suits are brought against joint and several obligors, copartners, promisors, or endorsers of promissory notes, in which process is not served on all the defendants, and judgment is taken against such as are served, the others are still liable in another action, and the judgment obtained is no bar to the subsequent proceeding.

2. In all cases of amicable confession of judgment by one or more of such debtors, the judgment shall not bar the action against the others who do not confess.

3. Where judgment is recovered against one or...