Sherman v. Rollberg

The defendant’s amended answer in this case only makes two points as a defense ; one, an alleged alteration of the note sued on, the other, payment; neither of which under the pleadings can amount to a defense.

[391]st. The defense set up as to the alteration is not good, because it is not averred that the alleged alteration was made with the knowledge, or by the authority or direction of plaintiff. Humphreys v. Crane & Yale, 5 Cal. 173; U. S. v. Linn, 1 How. 110; Henfree v. Bromly, 6 East. 309 ; Lewis v. Payne & Cow., 71; Nichols v. Johnson, 10 Conn. 192; Rees v. Ovenbaugh, 6 Cow. 746; Warring v. Smith et al., 2 Barb. Ch. R. 119.

Any other doctrine would destroy all faith in commercial transactions, for^every suit upon a written instrument might be defeated, without any fault of plaintiff either by the defendant or a third person.

2d. The alteration of an instrument to avoid it must be material. Turner v. Bdiagram, 2 Cal. 520. An alteration to be material must be such as- to materially affect the rights of the obligor. Ib.

3d. The alteration alleged in defendant’s answer does not affect the rights of the obligor, for it makes no difference to him whether the note reads payable to order or bearer, as far as his liability to pay is concerned. From the admissions in defendant’s amended answer, if the alteration (for the sake of the argument) could be considered material; it would only temporarily suspend the right of recovery in the plaintiff until he could get the note endorsed over to himself, which is conclusive that the alleged alteration is immaterial, as far as the rights of the obligor are affected.

4th. An alteration is immaterial which does not vary the nature, subject matter or value of the contract. Humphreys v. Crane and Yale, 5 Cal. 173 ; Martindale v\\ Follet, 1N. H. 97; Hunt v. Adams, 6 Mass. 519; Granite R. R. Co. v. Bacon, 15 Pick. 242. I cannot see how defendant’s alleged alteration can have any such effect.

5th. The defense of alteration is not good, because it does not allege any time at which such alteration was made. To be a good defense, it should have been alleged to have been made after the execution of the note; for the presumption of law is, that it was made at or before its execution. 1 vol. Greenleaf on Ev. § 564.

6th. Any change in a written instrument, to make it an alteration so as to amount to a defense, must be charged to have been done by the party claiming under it; otherwise it is a mere spoliation, and no defense. 1 vol. Greenleaf on Ev. § 566.