may be filled without avoiding the note,305 especially where the blank has been negligently left.306 And even the insertion of a high rate of interest in such blank will not render it void in the hands of a bona fide holder.307 But where a rate of interest is inserted, which is the maximum rate allowed by law in case of special agreement, it has been held to discharge an accommodation indorser not consenting to it.308

Blank Left by Negligence.

§ 1770. Where a blank space is left by the negligence of the parties signing, and a subsequent holder is thereby enabled to raise the amount, the party guilty of the negligence is held, by earlier English cases at least, to be estopped from setting up the alteration in his discharge. 309 And this rule has been followed in some American cases, ,310 but seems to be now abandoned or materially qualified, both here and in England. 311 Where a bank certifies a check which has

305 Fisher v. Dennis, 6 Cal. 577.

306 Blakey v. Johnson, 13 Bush (Ky.) 197. But see, contra, where it was inserted in spaces left in the printed blank against the express agreement of the parties. Washington Sav. Bank v. Ecky, 51 Mo. 272. So, although written in a note "with per cent.," and in pursuance of the original agree

ment, and made by the plaintiff's agent on representation to him at the time of sale. Woodworth v. Anderson, 63 Iowa, 503, 19 N. W. 296. And see §§ 186, 1756, supra.

307 Rainbolt v. Eddy, 34 Iowa, 440. But, if the rate inserted exceeds the legal rate, only the latter can be recovered. Patton v. Shanklin, 14 B. Mon.

(Ky.) 15.

308 Weyerhauser v. Dun, 100 N. Y. 150, 2 N. E. 274, reversing 16 N. Y. Wkly. Dig. 412.

309 Byles, Bills, 328; Benj. Chalm. Dig. art. 237; 2 Daniel, Neg. Inst. 416; 1 Edw. Bills & N. § 264; Pagan v. Wylie, 1 Ross, Lead. Cas. 194. So, where the negligence is that of the drawer's agent, Young v. Grote, 4 Bing. 253; or where the blank is left by the fraud of the clerk who drew the paper, and overlooked by the negligence of the drawer, Halifax Union v. Wheelwright, L. R. 10 Exch. 183.

310 Garrard v. Haddan, 67 Pa. St. 82; Brown v. Reed, 79 Pa. St. 370; Isnard v. Torres, 10 La. Ann. 103; Yocum v. Smith, 63 Ill. 321. And see § 1782, infra. 311 See § 187, supra; Greenfield Sav. Bank v. Stowell, 123 Mass. 196, Gray, C. J., saying in this case: "That the signer of a note complete upon its face. and not intrusted by him to any person for the purpose of being filled up or added to, but afterwards altered, without his authority or assent, by the in

been so drawn as to make it easy to raise the amount without the alteration being perceived, it has been held, in like manner, to be estopped from setting up such alteration.312 In such cases, the fact of negligence is a question for the jury.313 Thus, it has been held in England that an acceptor will be liable to a bona fide holder for accepting a bill with the amount left blank and only designated in the margin by figures, the figures having been altered, and the blank fraudulently filled with a greater amount than was agreed on.314 And where a maker is negligent in signing the note, and it is fraudulently altered by raising the amount, he cannot hold his agent for the misconduct of a subagent, who drew the note with such blanks, and afterwards altered and misappropriated it.315

Consent, by Whom Given.

§ 1771. The consent of a party will sometimes be implied from the consent or other action of an agent. Thus, where a bill is dated by mistake in a wrong year, and the mistake is corrected by the agent of the drawer and acceptor, although without their knowledge, it will not discharge the bill.316 But an agent appointed to sell goods and take a note has no authority to alter the terms of the note taken, and such alteration by him will be regarded as the act of a stranger, and will not discharge the note as originally drawn.317

sertion of additional words in blank spaces therein, should be held to have contracted with every subsequent innocent holder who may be thereby defrauded, and to be held liable to him in an action on the note in its altered form, is unsupported by any English decision of which we are aware, and appears to us to be inconsistent with the weight of American authority, and unfounded in principle." So, Knoxville Nat. Bank y. Clark, 51 Iowa, 264, 1 N. W. 491; Abbott v. Rose, 62 Me. 194; Exchange Nat. Bank of Spokane v. Bank of Little Rock, 7 C. C. A. 111, 58 Fed. 140, 22 Lawy. Rep. Ann. 686, note; Burrows v. Klunk, 70 Md. 451, 17 Atl. 378. And see §§ 182, 1768, supra.

312 Helwege v. Bank, 28 La. Ann. 520.

313 Brown v. Reed, 79 Pa. St. 370.

314 Garrard v. Lewis, 10 Q. B. Div. 30.

315 The note being so drawn, and afterwards altered by the subagent. Whitmore v. Wilks, 3 Car. & P. 364.

316 Byles, Bills, 327; Chit. Bills, 212; Brutt v. Picard, Ryan & M. 37; or by the agent of the maker, Van Brunt v. Eoff, 35 Barb. (N. Y.) 501.

317 Bigelow v. Stilphens, 35 Vt. 521.

Where a check is drawn and left by the drawer with his foreman to pay wages, he is not authorized to alter it, and if he makes a material alteration, and obtains the money from the bank, the drawer will not be liable to the bank for the amount paid.31

318

If a note is altered by the direction of one maker without the consent of his co-maker, the latter will be discharged.319 But if one obligor of a bond places it in the hands of his co-obligor, and the latter erases one of the signatures before delivering the bond, his authority as agent, and the consequent consent of his co-obligors, will be presumed. 320 The consent of one will be binding upon the other, where the indorsement is altered by the maker, and the maker and indorser are partners.321 But an accommodation maker is not bound by an alteration made by the payee before the note is discounted.3 So, the drawer's consent to an alteration will not bind the acceptor.3 And an accommodation acceptor will be discharged by an alteration made by the drawer before discounting the bill.324

322

323

§ 1772. The consent of a maker to the alteration of a note will not bind other parties.325 If it is made by the maker or principal debtor, without the surety's consent, it will discharge the latter.

318 Crawford v. Bank, 49 N. Y. Super. Ct. 68.

326

319 Perring v. Hone, 2 Car. & P. 401, 4 Bing. 28; Biery v. Haines, 5 Whart. (Pa.) 563; Draper v. Wood, 112 Mass. 315; Fay v. Smith, 1 Allen (Mass.) 477; Broughton v. Fuller, 9 Vt. 373; Horn v. Bank, 32 Kan. 518, 4 Pac. 1022; Bell v. Mahin, 69 Iowa, 408, 29 N. W. 331; Flanigan v. Phelps, 42 Minn. 186, 43 N. W. 1113. Although made in the presence of one maker, who said he had authority from the other. McVey v. Ely, 5 Lea (Tenn.) 438. The consent of one partner will, however, bind his copartner as to partnership paper. Mace v. Heath, 30 Neb. 620, 46 N. W. 918.

320 Wilmington & W. R. Co. v. Kitchin, 91 N. C. 39.

321 Pahlman v. Taylor, 75 Ill. 629. So, where the makers are partners, and one consents, although the note is executed in their individual names, but the consideration was received by the firm. Taylor v. Taylor, 12 Lea (Tenn.) 714. 322 Fraker v. Cullum, 21 Kan. 555.

323 Chit. Bills, 216; Cardwell v. Martin, 9 East, 190; or a bank certifying a check drawn on it, Abrams v. Bank, 31 La. Ann. 61.

324 Calvert v. Roberts, 3 Camp. 343. Although it would be otherwise if the drawer had received a general authority from the acceptor. Johnson v. Gibb, 2 Chit. 123.

325 Craighead v. McLoney, 99 Pa. 211.

326 Wood v. Steele, 6 Wall. 80; Franklin Life Ins. Co. v. Courtney, 60 Ind.

And the fact that the surety allowed the principal to take the note for the purpose of having it discounted is no authority for an alteration.3 327 But the surety's estate will be bound by the consent of his administrator, although such administrator is also the principal maker. 328 If the alteration is made by consent of the drawer and acceptor after indorsement, the indorser will be discharged.329 So, an indorser is not bound by consent given by the maker.3 And an alteration made by the maker will discharge an accommodation indorser, especially where it is fraudulently made.332 And no authority to alter the amount of a note after its execution by an accommodation indorser will be implied from the previous indorsement

331

330

134; Schnewind v. Hacket, 54 Ind. 248; Britton v. Dierker, 46 Mo. 591; Marsh v. Griffin, 42 Iowa, 403; Neff v. Horner, 63 Pa. St. 327; Brown v. Reed, 79 Pa. St. 370; Brown v. Straw, 6 Neb. 536; Goodman v. Eastman, 4 N. H. 455; Haines v. Dennett, 11 N. H. 180; Glover v. Robbins, 49 Ala. 219; Coburn v. Webb, 56 Ind. 96; Benedict v. Miner, 58 Ill. 19; Hanson v. Crawley, 41 Ga. 303; Crockett v. Thomason, 5 Sneed (Tenn.) 342; Hill v. O'Neill, 101 Ga. 832, 28 S. E. 996; Thompson v. Massie, 41 Ohio St. 307; Sanders v. Bagwell, 32 S. C. 238, 10 S. E. 946; Id., 37 S. C. 145, 15 S. E. 714, and 16 S. E. 770. And the holder cannot afterwards strike out the alteration and revive the surety's liability. Fulmer v. Seitz, 68 Pa. St. 237. But an immaterial alteration by the principal will not discharge the surety. Keene's Adm'r v. Miller (Ky.) 45 S. W. 1041.

327 Agawam Bank v. Sears, 4 Gray (Mass.) 95; Blakey v. Johnson, 13 Bush (Ky.) 197. But see, contra, where the alteration was merely the signature of an additional surety. Ward v. Hackett, 30 Minn. 150, 14 N. W. 578. And see Bingham v. Reddy, 5 Ben. 266, Fed. Cas. No. 1,414.

328 Voiles v. Green, 43 Ind. 374.

329 Chit. Bills, 215; Outhwaite v. Luntley, 4 Camp. 179.

330 Stephens v. Graham, 7 Serg. & R. (Pa.) 505.

331 Aldrich v. Smith, 37 Mich. 468; Weyerhauser v. Dun, 100 N. Y. 150, 2 N. E. 274, reversing 16 N. Y. Wkly. Dig. 412; Stoddard v. Penniman, 108 Mass. 366; Bank of Ohio Valley v. Lockwood, 13 W. Va. 392; Batchelder v. White, 80 Va. 103; McMillan v. Hefferlin, 18 Mont. 385, 45 Pac. 548; Farmers' & Merchants' Nat. Bank v. Novich, 89 Tex. 381, 34 S. W. 914. Although altered before the maker signed or delivered it, Halcrow v. Kelly, 28 U. C. C. P. 551; Woodworth v. Bank, 19 Johns. (N. Y.) 391, reversing 18 Johns. (N. Y.) 315; or procured it to be discounted, Sturges v. Williams, 9 Ohio St. 443; Waterman v. Vose, 43 Me. 504.

332 Trigg v. Taylor, 27 Mo. 245.

by him of a series of renewal notes.333 But, if an accommodation indorser leaves a blank which is filled by the maker or acceptor, he will not be discharged by the alteration.334

335

Alteration under Stamp Act.

337

§ 1773. Where a bill or note is complete, an alteration is considered to be a fresh drawing under the British stamp act; and it is therefore void without a fresh stamp, although not previously negotiated. This has been held also in the case of an additional signature, unless originally intended by the parties.336 So, a new stamp is required by an alteration in the date of a bill,3 or in the time of payment, or in making a particular statement of the consideration. 339 On the contrary, an alteration of the terms of the bill in the acceptance has been held not to require a new stamp.340 So, the filling of a blank left for the payee's name; 341 or the insertion of the words "or order," which had been omitted by mistake; or an alteration of the date at the drawer's request before acceptance; 343 or

333 Etna Nat. Bank v. Winchester, 43 Conn. 391.

342

334 Kitchen v. Place, 41 Barb. (N. Y.) 465; Hepler v. Bank, 97 Pa. St. 420; Rogers v. Poston, 1 Metc. (Ky.) 643.

335 Bowman v. Nichol, 5 Term R. 537; Bathe v. Taylor, 15 East, 412. after indorsement. Johnson v. Duke of Marlborough, 2 Starkie, 313.

E. g.

336 Clark v. Blackstock, Holt, 474; Ex parte White, 2 Deac. & C. 334. 337 Byles, Bills, 326; Outhwaite v. Luntley, 4 Camp. 179; Walton v. Hastings, Id. 223; Cordwell v. Martin, 1 Camp. 79; Bathe v. Taylor, 15 East, 412. Although the bill had not been negotiated, Cordwell v. Martin, 9 East, 190.

838 Wilson v. Justice, Peake, Add. Cas. 96. And if changed before negotiation by consent of the acceptor, and before negotiation, from 21 to 51, and restored to 21 days after date, and date advanced 12 days, each change requires a new stamp. Bowman v. Nichol, 5 Term R. 537.

339 Hamelin v. Bruck, 9 Q. B. 306; Knill v. Williams, 10 East, 431. But see, contra, if made before the last maker signs, Wright v. Inshaw, 1 Dowl. (N. S.) 802.

340 Chit. Bills, 216; Stevens v. Lloyd, Moody & M. 292. 341 Attwood v. Griffin, Ryan & M. 425, 2 Car. & P. 368.

342 Byrom v. Thompson, 11 Adol. & E. 31; Kershaw v. Cox, 3 Esp. 246. 343 Chit. Bills, 212; Peacock v. Murrell, 2 Starkie, 558; Upstone v. Marchant, 2 Barn. & C. 10; Brutt v. Picard, Ryan & M. 37; Downes v. Richardson, 5 Barn. & Ald. 674.