ALTERATION. A change in the of a contract made by the agreement of the parties thereto.
An act done upon an instrument in writing by a party entitled under it, without the con. sent of the other party, by which its meaning or language is changed.
The term is properly applied to the change in the language of instruments, and is not used of changes in the contract itself. And it is in strict ness to be distinguished from the act of a stranger in changing the form or language of the instru ment, which is called a spoliation. This latter dis tinction is not always observed in practice, how ever.
An alteration avoids the instrument. 11 Coke, 27 ; 5 C. B. 181; 4 Term, 320; 15 East, 29; 8 Cow. N. Y. 71; 2 Heist. N J. 175; but not, it seems, if the alteration be not material. 2 N. H. 543; 8 id.139; 10 Conn. 192; 5 Mass. 540; 6 id. 519; 20 Vt. 217; 3 Ohio St. 445. The insertion of such words as the law sup plies is said to be not material. 15 Pick. Mass. 239; 3 Metc. Mass. 103; 29 Me. 298. As to whether tearing and putting on a seal is material, see 2 Pick. Mass. 451; 4 Gilm. Va. 411 ; 11 Mees. & W. Exch. 778; 13 id. 343; 1 Parsons, Contr. 227. The question of materiality is one of law for the court. 1• N. H. 95; 2 id. 543 ; 11 Me. 115; 13 Pick. Mass. 165 ; 5 Miss. 231. Alteration of a deed will not defeat a vested estate or interest ac quired under the deed, 11 Mees. & W. Exch.
800; 2 H. Blackst. 259; 23 Pick. Mass. 231; 1 Me. 73 ; 1 Watts, Penn. 236 ; 3 Barb. N. Y. 404; see 18 Vt. 466; but as to a suit upon covenants has the same effect as alteratioi of a parol contract. 11 Mees. & W. Exch. 800; 23 Pick. Mass. 231; 2 Barb. Ch. N. Y. 119. As to filling up blanks in deeds, see 6 Mees. & W. Exch. 200 ; 5 Mass. 538 ; 17 Serg. & R. Penn. 438; 20 Penn. St. 12; 4 M'Cord, So. C. 239; 7 Cow. N. Y. 484 ; 2 Dan. Ky. 142; 4 Id. 191; 2 Wash. Va. 164; 2 Ala. 517.
A spoliation will not avoid an instrument, even if material, if the original words can be restored with certainty. 1 Parsons, Contr. 224; 1 Greenleaf, Ev. 4 566.
Where there has been manifestly an alter ation of a parol instrument, the party claim ing under it is bound to explain the alter ation. 6 Cush. Mass. 314; 9 Penn. St. 186; 11 N. H. 395 ; 13 id. 385; 2 La. 290; 3 Harr. Del. 404; 8 Miss. 414; 17 id. 375; 7 Barb. N. Y. 564; 6 Carr. & P. 273; 7 Ad. & E. 444; 8 id. 215; 2 Mann. & G. 890, 909 ; see 11 Conn. 531; 9 Mo. 705; 2 Zabr. N. J. 424; 5 Harr. & J. Md. 36; 20 Vt. 205 ; 13 Me. 386. As to the rule in case of deeds, see Coke, Litt. 225 b; 1 Kebl. 22; 5 Eng. L. & Eq. 349; 1 Zabr. N. J. 280.