Sec 699

The party to whose disparagement the alteration is made may sue on the contract, supposing its meaning can be ascertained and proved, to the same effect as if it had been lost or destroyed.3 He is entitled to prove what the document was before it was tampered with, since the failure to produce the original is imputable to the misconduct, not of himself, but of the opposing party.1 If there is doubt as to the meaning, the sense less favorable to the spoliator is to be taken.2 On the same reasoning, a party is not affected by alterations made without his connivance by a stranger,3 though against such stranger the presumption against spoliation does not work if it appear that the alteration was made inadvertently.

Adverse parties not to be prejudiced by alteration.

1 In Whittlesey V. Frantz, 74 N. Y. 456, the plaintiff relied on a stock subscription; and the paper put in evidence showed the name of a prior subscriber cancelled by lines drawn through it, and opposite to the name was written "By agree't, Mar. 5, '73," this date being subsequent to the defendant's subscription. It was held that though this alteration was unexplained at the trial, it did not by itself discharge the defendant.

2 Tyree V. Rives, 57 Ala. 173.

3 Wh. on EV. sec 625 et seq.; Leake, 2d ed. 810.

Sec 700

As against a non-agreeing party, negotiable paper is avoided by any alterations tending to vary its effect, and this though the alteration was made before the paper came into the holder's hands.4 As having this effect, and thus avoiding the paper, is the alteration of the date;5 changing time of payment;6 changing the place of payment;7 inserting a place of payment in a blank;8 adding or varying terms as to interest;9 altering the medium of payment;10 adding a seal;11 inserting a fixed rate of exchange;12

Rule as to negotiable paper.

1 Pattinson V. Luckley, L. R. 10 Ex. 330.

2 Wh. on EV. sec 1265 et seq. » Infra, sec 702.

4 Outhwaite V. Luntley, 4 Camp. 179; Wood V. Steele, 6 Wall. 80; Martendale V. Follett, 1 N. H. 95. It should be remembered that the English cases to this effect are under the stamp act, and that alterations of a note after stamping may be regarded as conflicting with the act. But, aside from the stamp act, the principle in the text is good.

5 Master V. Miller, 4 T. R. 320; Hirschman V. Budd, L. R. 8 Ex. 171, qualifying Parry V. Nicholson, 13 M. & W. 778; Walton V. Hastings, 4 Camp. 223; Cardwell V. Martin, 9 East, 190; Wood V. Steele, 6 Wall. 80; Stephens V. Graham, 7 S. & R. 505; Britton V. Dierker, 46 Mo. 591. In Vance V. Lowther, L. R. 1 Ex. D. 176, a cheque payable to bearer on demand was held avoided by a change of date made by an agent of the payee. See Leake, 2d ed 809.

6 Bowman V. Nichol, 5 T. R. 537; Bathe V. Taylor, 15 East, 412; Miller V. Gilleland, 19 Penn. St. 119; Lewis V. Kramer, 3 Md. 265.

7 Tidmarsh V. Grover, 1 M. & S. 735; Southwark Bk. V. Gross, 35 Penn. St. 80.

8 Burchfield V. Moore, 3 E. & B. 683; Calvert V. Baker, 4 M. & W. 417; Crotty V. Hodges, 4 M. & G. 561; Toomer V. Rutland, 57 Ala. 379.

9 Warrington V. Early, 2 E. & B. 763; Waterman V. Vose, 43 Me. 504; Lee V. Starbird, 55 Me. 491: Fay V. Smith, 1 Allen, 477; McGrath V. Clark, 56 N. Y. 34; Neff V. Horner, 63 Penn. St. 327; Fulmer V. Seitz, 68 Penn. St. 237; Patterson V. McNeely, 16 Oh. St. 348; Locknane V. Emmerson, 11 Bush, 69; Darwin V. Rippey, 63 N. C. 318; Glover V. Robbins, 49 Ala. 219; Lamar V. Brown, 56 Ala. 157.

10 Dan. on Neg. Inst. sec 1349; Martendale V. Follett, 1 N. H. 95; Stephens V. Graham, 7 S. & R. 505; Darwin V. Rippey, 63 N. C. 318.

11 Eddy V. Bond, 19 Me. 461.

12 Hirschfieldi V. Smith, L.R. 1 C. P. 340.

changing "order" to "bearer;"1 interlining "jointly and severally" before the names of the makers of a joint note;2 adding an additional maker's name to a joint and several note;3 materially changing the relations of the parties;4 and cutting off or erasing a signature of a party to a joint and several note.5 It is otherwise, however, with entries which it was understood by the parties that the holder was at liberty to make, or which are only cumulative, as adding the words "on demand" when the note fixed no time for payment.6 - An indorsee taking from an indorser whose title is vitiated by tampering with the paper is in no better position than the party from whom he takes. His only remedy is against the party from whom he took the paper, from whom he may recover the consideration paid.7 The party making the alteration, however, cannot recover even the consideration from his immediate indorser, because he has destroyed the remedies of the latter against prior parties; " by altering the bill in a material part he makes it his own as against the prior parties, and causes it to operate as a satisfaction of the debt for which it was originally given."8 - An unindorsed bill for value, it should be remembered, is not complete until it is accepted and returned to the payee;9 and an accommodation bill is not in this sense complete, and, so far as concerns consenting parties, may be altered, even under the English stamp act, until it is in the hands of some person entitled to recover on it.1 - It should also be kept in mind that a party who draws a note or check so carelessly that blanks in it can be filled up, or other alterations made in it without erasure, may make himself liable to bona fide holders for value.2

1 Union Nat. Bk. V. Roberts, 45 Wis. 373.

2 Perring V. Hone, 4 Bing. 28; 12 Moore, 135; 2 C. & P. 401.

3 Gardner V. Walsh, 5 E. & B. 83; Wallace V. Jewell, 21 Oh. St. 163; Lunt V. Silver, 5 Mo. Ap. 186. But see, contra, McVean V. Scott, 46 Barb. 379; McCaughey V. Smith, 27 N. Y. 39; Miller V. Finley, 26 Mich. 249; see 2 Dan. on Neg. Int. sec 1388.

4 Knill V. Williams, 10 East, 431; see Miller V. Reed, 27 Penn. St. 244.

5 Mason V. Bradley, 11 M. & W. 593; see Mahaime Bank V. Douglass, 31 Conn. 170; Davis V. Coleman, 7 Ired. 424.

6 Aldous V. Cornwell, L. R. 3 Q. B. 573; see Langdon V. Paul, 20 Vt. 217;.

Granite R. R. V. Bacon, 15 Pick. 239 Clower V. Wynn, 59 Ga. 246. As to filling blanks, see supra, sec 204. As to alterations by consent, see Myers V. Nell, 84 Penn. St. 369.

7 Leake, 2d ed. 811; Burchfield V. Moore, 3 E. & B. 683; Vance V. Low-ther, L. R. 1 Ex. D. 176.

8 Leake, 2d ed. 811, citing Alderson V. Langdale, 3 B. & Ad. 663. A memorandum on the back of a promissory note, noting that, after a specific date, the interest on the note will be reduced, is not an alteration of the note, and does not discharge a surety of the maker. Cambridge Savings Bank V. Hyde, 131 Mass. 77.

9 Wh. on EV. sec 626; Sherrington V. Jermyn. 3 C. & P. 374.