Neff v. Horner

• Decision Date: 31 January 1870
• Parties: Neff <I>et al. versus</I> Horner.
• Court: Pennsylvania Supreme Court

63 Pa. 327

Neff et al. versus Horner.

Supreme Court of Pennsylvania.

November 16, 1869.

January 31, 1870.

November 16th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Greene county: No. 216, to October and November Term 1869.

COPYRIGHT MATERIAL OMITTED

A. A. Purman (with whom were Wyly & Buchanan), for plaintiffs in error.—The alteration was in a material part and the note was void: Babb v. Clemson, 10 S. & R. 419; United States Bank v. Russell, 3 Yeates 391; Miller v. Gilleland, 7 Harris 120; Marshall v. Gougler, 10 S. & R. 164; Henning v. Werkheiser 8 Barr 518; Byles on Bills 475; Warrington v. Early, 2 Ellis & B. 762; 2 Parsons on Bills, 545; Addison on Contracts 1083, 1084. The record as to the plea might have been amended: Smith v. Hood, 1 Casey 220.

R. W. Downey, for defendant in error.—The alteration could not be shown except under the plea of non est factum: Piggott's Case, 11 Rep. 27. The application for amendment was too late: Ridgely v. Dobson, 3 W. & S. 118; Hartman v. Keystone Ins. Co., 9 Harris 474. The plaintiff was not allowed to recover more than the sureties were bound for by the note as they signed it: Worrell v. Gheen, 3 Wright 388.

The opinion of the court was delivered January 31st 1870, by AGNEW, J.

It seems to be settled 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: 1 Greenleaf's Ev. § 565; Marshall v. Gougler, 10 S. & R. 164; Barrington et al. v. Bank of Washington, 14 S. & R. 422-3; Foust v. Renno, 8 Barr 378; Henning v. Werkheiser, Id. 518; Smith v. Weld, 2 Barr 54. 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: 1 Greenleaf's Ev. §§ 566, 568.

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 any apparent material alteration on the face of the paper: Stephens v. Graham, 7 S. & R. 505; Simpson v. Stackhouse, 9 Barr 186; Paine v. Edsell, 7 Harris 178; Miller v. Reed, 3 Casey 244.

The only Pennsylvania case that seems to run against this strong current of authority is Worrell v. Gheen, 3 Wright 388, but it is plainly exceptional. The opinion declares on the general principle strongly, but makes the case an exception on the ground that the plaintiff had no hand in the alteration, and because the case being stated for the opinion of the court, they were met by no discrepancy between the allegata and probata. How far the grounds of distinction may be deemed satisfactory, it is of no importance, for it is sufficient that the case is made an exception expressly.

In the present instance, however, the plaintiff, who was examined on his own behalf, admitted that Pennington, the principal in the note, made the addition in his presence. He saw him do it. He would not take the note till Pennington did so. The latter said he had authority from his sureties, but this was untrue. The alteration was not accidental, and the plaintiff, though guiltless of the fraud, was foolish to accept a note he himself saw altered by the principal without being certain he had authority to bind his sureties. The alteration was material, for it added interest to the principal. It was not...