created by the same instrument, an alteration of one obligation only does not invalidate the others. But the fact that an obligation is several at law is not conclusive. The true test is whether the alteration of one affects the rights of the parties under the others.92

§ 1899. Signature made in ignorance of alteration.

If an obligor signs an obligation after it has been signed by others, in ignorance of the fact that the obligation has been altered or by his signature is altered and that thereby the other obligors are discharged, the obligor signing last is also discharged if the obligee is cognizant of the facts before accepting the obligation. The signature of the last obligor does not bind him, because given under a mistake, induced by what is equivalent to misrepresentation.93 If, however, the obligee was not notified of the alteration either constructively by the appearance of the document or actually, his legal right to enforce the obligation cannot be defeated by the unknown equity of the deceived obligor.94

1900. Restoration.

If a contract has been avoided by alteration, the subsequent

92 Collins v. Prosser, 1 B. & C. 682, which held that tearing off the seal of one obligor on a several bond thereby discharging him did not destroy the liability of the other obligors, is clearly erroneous. The court admit that the right of contribution in equity was affected, and this is surely material.

In Brownell v. Winnie, 29 N. Y. 400, 86 Am. Dec. 314, the name of an obligor was added as maker to a note, and the court, in holding the alteration immaterial, relied on the fact that the obligation created was several rather than joint and several. This alone would not support the decision, but as the added signer was in fact a surety the conclusion is sound, since the original maker's liability in law and equity remained unchanged.

93 Ellesmere Co. v. Cooper, [1896] 1

Q. B. 75; People v. Kneeland, 31 Cal.
288; State v. Craig, 58 Ia. 238, 12 N.
W. 301; Howev. Peabody, 2 Gray, 556;
State v. McGonigle, 101 Mo. 353, 13
S. W. 758, 8 L. R. A. 735, 20 Am. St.
Rep. 609. Cf. Evans v. Partin, 22
Ky. L. Rep. 20, 56 S. W. 648.

94 Crandall v. Auburn Bank, 61 Ind. 349; Rhoades v. Leach, 93 Ia. 337, 61 N. W. 988, 57 Am. St. Rep. 281; Ward v. Hacket, 30 Minn. 150, 44 Am. Rep. 187, 14 N. W. 578. And see cases cited supra, § 1248, to the effect that in general fraud or misrepresentation inducing the surety to enter into an obligation is no defence against a creditor innocent and ignorant of the facts. This principle was lost sight of by the court in the contrary decision of Ellesmere Co. v. Cooper, [1896] 1 Q. B. 75.

restoration of the writing to its original form without the assent of the obligor will not restore the legal obligation.94" But if the alteration, because made by mistake or without wrongful intent, was not such as to avoid the obligation, and the document has been restored to its original form, it will be received in evidence and enforced.95

1901. Effect of immaterial alterations.

It was laid down in Pigot's case 96 that even an immaterial alteration if made by the obligee avoids a deed. But in 1819 97 the English Court refused to apply the rule to a policy of insurance, and fifty years later 98 this resolution in Pigot's case was dissented from. It has been followed in some cases in the United States, but most of them were decided a number of years ago, and no such severe rule is generally in force. As has been shown, even material alterations by the obligee, when innocently made, do not bar the obligee's rights, unless a statute like the Negotiable Instrument Law requires that result.1 This must be true a fortiori of immaterial alterations. And the

944 Wood v. Steele, 6 Wall. 80, 18 L. Ed. 725; Warpole v. Ellison, 4 Houst. 322; Hayes v. Wagner, 89 Ill. App. 390, 401; Snell v. Davis, 149 Ill. App. 391; Robinson v. Reed, 46 Ia. 219; Shepard v. Whetstone, 51 Ia. 457, 1 N. W. 753; Cotton v. Edwards, 2 Dana, 106; Locknane v. Emmerson, 11 Bush, 69; Citizens' Nat. Bank v. Richmond, 121 Mass. 110; McMurtrey v. Sparks, 71 Mo. App. 126; Shiffer v. Moşier, 225 Pa. 552, 74 Atl. 426, 24 L. R. A. (N. S.) 1155, 17 Ann. Cas. 756; McDaniel v; Whitsett, 96 Tenn. 10, 33 S. W. 567. Newell v. Mayberry, 3 Leigh, 250, 23 Ann. Dec. 261.

95 Rogers v. Shaw, 59 Cal. 260; Kountz v. Kennedy, 63 Pa. 187, 3 Am. Rep. 541. See remarks on the case last cited in Citizens' Bank v. Williams, 174 Pa. 66, 34 Atl. 303, 35 L. R. A. 464; and in Shiffer v. Mosier, 225 Pa. 552, 74 Atl. 426, 24 L. R. A. (N. S.) 1155, 17 Ann. Cas. 756.

98 11 Coke, 26b. See supra, § 1881.

97 In Sanderson v. Symonds, 1 Brod. & Bing. 426.

98 In Aldous v. Cornwell, L. R. 3 Q. B. 573.

99 Herdman v. Bratten, 2 Har. (Del.) 396; Johnson v. Bank, 2 B. Mon. 310, 311; Wickes v. Caulk, 5 Har. & J. 36; Haskell v. Champion, 30 Mo. 136; First Bank v. Fricke, 75 Mo. 178, 42 Am. Rep. 397; Hord v. Taubman, 79 Mo. 101; Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300; Bailey v. Gilman Bank, 99 Mo. App. 571, 74 S. W. 874; McCormick Harvesting Mach. Co. v. Blair, 146 Mo. App. 374, 124 S. W. 49; Vanauken v. Hornback, 2 Green (N. J.), 178, 25 Am. Dec. 509; Wright v. Wright, 2 Halst. 175, 11 Am. Dec. 546; Jones v. Crowley, 57 N. J. L. 222, 30 Atl. 871; Jackson v. Malin, 15 Johns. 293; Nunnery v. Cotton, 1 Hawks, 222; Morris v. Vanderen, 1 Dall. 64; Crockett v. Thomason, 5 Sneed, 342, 344.

1 Supra, § 1893.

prevailing doctrine is that no immaterial alteration will affect rights and liabilities under a writing, irrespective of the person by whom the alteration was made or his purpose in making it.2

§ 1902. What alterations are material.

The following alterations have been held material: erasing the name of the obligee or grantee and substituting the name of another; changing the name of the obligor in a deed, who

in fact signed as agent, but did not so indicate on the deed, to the name of the principal; or changing the signature of an obligor so as to make the obligation purport to be that of a corporation 5 or firm 6 instead of an individual, or that of an individual instead of a corporation," or that of a surety instead of a principal. Erasing the name of a joint or prior obligor, and changing the amount, time of payment, place of payment, or rate of interest are obviously material, as are the addition of words of negotiability, 10 of a clause requiring payment

to the name of the grantee in a deed was held immaterial, as the only effect was to designate more clearly the grantee actually intended. Coit v. Starkweather, 8 Conn. 289. So the addition of "with the will annexed," after the word "administrator." Casoni v. Jerome, 58 N. Y. 315.

But otherwise of an addition of a designation, which makes the payee in effect different. Hodge v. Farmers' Bank, 7 Ind. App. 94, 34 N. E. 123 (cashier); First Bank v. Fricke, 75 Mo. 178, 42 Am. Rep. 397 (president); Mechanics' American Nat. Bank v. Helmbacher, 199 Mo. App. 173, 201 S. W. 383 (trustee); York v. James, N. J. L. 332 (collector).

43

'North v. Henneberry, 44 Wis. 306. But erasure of an initial of the grantor's name in a deed is immaterial, where no change in the person is thereby intended or indicated. Banks v. Lee, 73 Ga. 25. See also Chadwick v. Eastman, 53 Me. 12.

5

Tyler v. First Nat. Bank, 150 Ky. 515, 150 S. W. 665; Sheridan v. Carpenter, 61 Me. 83.

Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 12 L. R. A. 140, 24 Am. St. Rep. 832 (though the alteration was made by one having no power to bind the firm); Haskell v. Champion, 30 Mo. 136.

7 Texas Printing Co. v. Smith, 14 S. W. Rep. 1074 (Tex. App.).

8 › Laub v. Paine, 46 Ia. 550, 26 Am. Rep. 163.

Smith v. United States, 2 Wall. 219, 17 L. Ed. 788; Gillett v. Sewat, 6 Ill. 475; Snell v. Davis, 149 Ill. App. 391; Citizens' Sav. Bank v. Halstead, 42 Ind. App. 79, 84 N. E. 1098; State v. Blair, 32 Ind. 313; State v. Craig, 58 Ia. 238, 12 N. W. 301; Bracken County v. Daum, 80 Ky. 388; State v. Findley, 101 Mo. 217, 14 S. W. 185; Blanton v. Commonwealth, 91 Va. 1, 20 S. E. 884.

But not if the obligor whose name was erased was an infant and had repudiated his contract. Young v. Currier, 63 N. H. 419.

Of course a release of a joint prior party by any other means than physical changes in the document is not an alteration, and any effect upon the liability of subsequent parties will be governed by rules of joint obligations and of suretyship which have been elsewhere considered. Davis v. v. Gutheil, 87 Wash. 596, 152 Pac. 14. 10 Many authorities as to such changes in negotiable paper are collected in 1 Ames, Cas. Bills and Notes, 447, 448; 2 Century Digest, 241 seq. See also Sec. 125 of the Uniform Neg. Inst. Law, supra, § 1193.

In Tranter v. Hibbard, 108 Ky. 265, 56 S. W. 169, a note was altered by writing the word "fixed" after the date of payment, which is equivalent to "without grace." By the law of Kentucky such negotiable paper only as is discounted at a bank is entitled to grace. The note in question never

in gold,11 or providing that on default in one of several notes all shall become due, 12 or that interest shall be compounded,13 or that the payee of a note shall have a conditional vendor's rights in property for which the note was given. 137 So a waiver of demand and notice written over a blank indorsement; 14 or the insertion of words of guaranty over such an indorsement," unless the indorser's intention was in fact to be liable as a guarantor; or the addition or change of property described in a deed or mortgage; 17 the insertion in a mortgage of an insurance clause or a statement that it was given to secure