Lost contracts may be enforced on parol proof, sec 694.

Material alteration in favor of custodian of paper precludes him from benefiting by it, sec 695.

Alterations are material when tending to benefit party making them, sec 696.

Alterations made during negotiations do not invalidate, sec 697.

Burden on party producing altered writing, sec 698.

Adverse parties not to be prejudiced by alteration, sec 699.

Rule as to negotiable paper, sec 700.

As to policies of insurance, sec 701.

Alteration by stranger does not vitiate, sec 702.

So of accidental alteration, sec 703.

Vested rights not affected, sec 704.

Alterations by consent when expressing change of intention start a new contract, sec 705.

Sec 694

A written contract when lost or destroyed may be proved by parol, and the contract as thus reproduced, supposing its terms can be established, is as much a basis for suit as would be the original document.1 - An exception exists in this respect with regard to negotiable paper. To the bona fide holder of such paper the fact that it had been intermediately lost is no defence; hence, parties sued on a lost bill or note are entitled to require that they should be indemnified as to any subsequent suit by parties by whom the missing paper should be produced.2 And, though the rule does not apply to non-negotiable paper,3 it applies to negotiable paper payable to order though not yet endorsed.4 But a court of equity will compel payment on lost negotiable paper on sufficient indemnity being tendered;5 and in England, by the common law procedure act, the loss of a negotiable instrument does not preclude suit being brought on it in all cases where the plaintiff tenders indemnity.1 - On destroyed paper an action can be maintained,2 and in Massachusetts destroyed bills are placed in the same position as those that are lost.3

Lost contracts may be enforced on parol proof.

1 Wh. on EV. sec 129, 150.

2 Davis V. Dodd, 4 Taunt. 602; Hansard V. Robinson, 7 B. & C. 90.

3 Wain V. Bailey, 10 A. & E. 616.

4 Ramuz V. Crowe, 1 Ex. 167; Stone V. Clough, 41 N. H. 290; Spencer V. Dearth, 43 Vt. 98.

5 Leake, 2d ed. 819; Byles on Bills, 9th ed. 365; Hansard V. Robinson, 7 B. & Cr. 95.

Sec 695, A written contract is avoided by material alterations made in it when in the hands of the party interested in the change

The rule, as originally adopted, was meant to prevent fraud. A party who either makes or negligently permits an alteration to be made in his favor in a document in his custody, ought to be precluded from taking anything under the document so altered. He may have acted without guile, but at the best he acted improvidently, and justice is in the long run promoted by saying, that to tamper in one's own favor with a muniment of title makes it totally inoperative. It is true that in respect to contracts recorded under our registry statutes this reasoning loses much of its force. But to documents of all classes, so far as they are relied on for title, the rule may be held applicable.4 The principle is that while alterations by accident or by the interference of others, will not, as we will presently see, prejudice a party holding a document, yet a party making or permitting an alteration in his own favor in a document held by him should not be allowed to avail himself of such document.5 Were this rule not maintained, a party holding a document might make or connive at material alterations in the terms, and then take the chance of the alterations being detected, losing nothing if he fail in establishing them, and gaining the fruits of his fraud if he succeed.1 So highly is such spoliation reprobated, that a person who materially and designedly alters in his own favor a document is precluded from ever putting such document in evidence.2

Material alteration in favor of custodian of paper precludes him from benefiting by it.

1 Leake, 2d ed. 819.

2 Story on Notes, sec 107.

3 McGregory V. McGregory, 107 Mass. 543.

4 Wh. on EV. sec 621 et seq.; Leake on Cont. 2d ed. 805; Falmouth V. Roberts, 9M.& W. 471; Parry V. Nicholson, 13 M. & W. 779; Davidson V. Cooper, 13 M. & W. 352; Powell V. Divett, 15 East, 29; Thornton V. Appleton, 29 Me. 298; Bassett V. Bassett, 55 Me. 125; Lewis V. Payn, 8 Cow. 71; Wright V. Wright, 2 Halst. 175; Boalt V. Brown, 13 Oh. St. 364.

5 See Adams V. Frye, 3 Met. Mass. 103, where it was held that the addition of the name of a subscribing witness by the obligee of a bond avoided it as against the obligor. "It seems to us," said Dewey, J., "that we ought not to sanction a principle which would permit the holder of an obligation thus to tamper with it with entire impunity. But such would be the necessary consequence of an adjudication, that the subsequent addition of the name of an attesting witness, without the privity or consent of the obligee, is not a material alteration of the instrument, and would under no circumstances affect its validity." See, as sustaining the text, Smith V. U. S., 2 Wall. 219; Miller V. Stewart, 4 Wash. C. C. 26; Brackett V. Mount-.