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Alteration

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ALTERATION. A change in the terms of a contract or other written instrument by a party entitled under it, without the consent of the other party, by which its meaning pr 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 strictness to be distinguished from the act of a, stranger in chang ing the form or language of the instrument, which is called a apoliation. This latter distinction is not always observed in practice, however.

Also sometimes applied to a change made in a written instrument, by agreement of the parties ; but this use of the word is rather colloquial than technical. Such an alteration becomes a new agree ment, superseding the original one ; Leake, Cont. 430.

An alteration avoids the instrument ; 11 Coke 27 ; 5 C. B. 181; Lewis v. Payn, 8 Cow. (N. Y.) 71, 18 Am. Dec. 427; Wright v. Wright, 7 N. J. L. 175, 11 Am. Dec. 546; Wegner v. State, 28 Tex. App. 419, 13 S. W. 608; Palmer v. Poor, 121 lnd. 135, 22 N. E. 984, 6 L. R. A. 469 ; but not, it seems, if the alteration be not material; Bowers v. Jewell, 2 N. H. 543 ; Nichols v. Johnson, 10 Conn. 192 ; Smith v. Crooker, 5 Mass. 540 ; don v. Paul, 20 Vt. 217; Huntington v. Finch, 3 Ohio St. 445; Palmer v. Largent, 5 Neb. 223, 25 Am. Rep. 479; Oliver v. Hawley, 5 Neb. 439 ; Morrill v. Otis, 12 N. H. 466; King v. Rea, 13 Colo. 69, 21 Pac. 1084 ; Harper v. Reaves, 132 Ala. 625, 32 South. 721 (a deed) ; Warder, Bushnell & Glessner Co. v. Stewart, 2 Marv. (Del.) 275, 36 Atl. 88 ; Crowe v. Beem, 36 lnd. App. 207, 75 N. E. 302. The insertion of such words as the law supplies is said to be not material; Granite Ry. Co. v.

Bacon, 15 Pick. (Mass.) 239'; Thornton v. Ap pleton, 29 Me. 298. As to whether tearing and putting on a seal is material, see Powers v. Ware, 2 Pick. (Mass.) 451; Truett v. Wain wright, 4 Gilm. (Ill.) 411; 11 M. & W. 778. The question of materiality is one of law for the court; Martendale v. Follet, 1 N. H. 95; Brackett Ex'r v. Mountfort, 11 Me. 115; Wheelock v. Freeman, 13 Pick. (Mass.) 165, 23 Am. Dec. 674 ; Hill v. Calvin, 4 How. (Miss.) 231; Pritchard v. S,mith, 77 Ga. 463 ; and depends upon the facts of each case; L. R. 1 Ex. D. 176. The principle seems to be that a party "is discharged from his lia bility, if the altered instrument, supposed to be genuine, would operate differently to the original instrument, whether it be or be not to his prejudice;" Anson, Contr. (2d Am. Ed.) *327; 5 E. & B. 89. For instances, see Schwarz v. Oppold, 74 N. Y. 307; Leonard v. Phillips, 39 Mich. 182, 33 Am. Rep. 370 ; Toomer v. Rutland, 57 Ala. 379, 29 Am. Rep. 722 ; Robinson v. State, 66 Ind. 331; Moore v. Hutchinson, 69 Mo. 429; Express Pub. Co. v. Aldine Press, 126 Pa. 347, 17 Atl. 608; Warder v. Willyard, 46 Minn. 531, 49 N. W. 300, 24 Am. St. Rep. 250. Alteration of a deed will not defeat a vested estate or in terest acquired under the deed; 11 & W. 800; 2 H. Bla. 259 ; Chessman v. Whitte more, 23 Pick. (Mass.) 231; Barrett v. Thorn dike, 1 Greenl. (Me.) 73; Withers v. Atkin

son, 1 Watts (Pa.) 236; Smith v. McGowan, 3 Barb. (N. Y.) see Bliss v. McIntyre, 18 Vt. 466, 46 Am. Dec 165; but as to an action upon covenants, has the same effect as alter ation of an unsealed writing ; 11 M. & W. 800; Chessman v. Whittemore, 23 Pick. (Mass.) 231; Waring v. Smyth, 2 Barb. Ch. (N. Y.) 119, 47 Am. Dec. 299. As to filling blanks, see BLANK.

The same rule as to alterations applies to negotiable promissory notes as to other in struments ; Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 4 L. R. A. 196, 12 Am. St. Rep. 754. The unauthorized insertion of "or bear er" in a note, if made innocently, will not make the note void; Croswell v. Labree, 81 Me. 44, 16 Atl. 331, 10 Am. St. Rep. 238; but the insertion of "or order" will avoid; Tay lor v. Moore (Tex.) 20 S. W. 53.

Where the alteration of a promissory note, though made by the holder, is prompted by honest motives, the instrument retains its legal validity and a bill in equity will lie to recover thereon ; Wallace v. Tice, 32 Or. 283, 51 Pac. 733; the fraudulent detaching a stub containing conditions favorable to maker, from a note, avoids the note; Stephens v. Davis, 85 Tenn. 271, 2 S. W. 382.

A spoliation by a third party without the knowledge or consent of a party to the in strument will not avoid an instrument even if material, if the original words can be re stored with certainty; 1 Green]. Ey. § 566 ; Andrews v. Calloway, 50 Ark. 358, 7 S. W.

449; but the material alteration of an in strument by a stranger, while it is fn the custody of the promisee, avoids his rights under it ; 11 Coke 27 b; L. R. 10 Ex. 330; because one who "has the custody of an in strument made for his benefit, is bound to preserve it in its original state ;" 13 M. & W. 352 ; 3 E. & B. 687 ; Leake, Cont. 425; but see Clapp v. Shephard, 23 Pick. (Mass.) 231.

When a note was given by a corporation payable to its manager's wife for his salary, an alteration making it payable to the man ager himself is material; Sneed v. Milling Co., 73 Fed. 925, 20 C. C. A. 230.

Where there has been manifestly an al teration of a parol instrument, the party claiming under it is bound to explain the alteration ; Wilde v. Armsby, 6 Cush. (Mass.) 314; Simpson v. Stackhouse, 9 Pa. 186, 49 Am. Dec. 554; Hills v. Barnes, 11 N. H. 395; MeMicken v. Beauchamp, 2 La. 290; Warren v. Layton, 3 Har. (Del.) 404 ; Commercial & R. Bank of Vicksburg v. Lum, 7 How. (Miss.) 414 ; Tilton v. Ins. Co., 7 Barb. (N. Y.) 564; 6 C. & P. 273. As to the rule in case of deeds, see Co. Litt. 225 b; 1 Kehl. 22; 5 Eng. L. & Eq. 349; Den v. Farlee, 21 N. J. L. 280.

Under the common law erasures and al terations of written instruments were pre sumed to have been made at the time of, or anterior to, their execution, the law presum ing the honesty of purpose and action until the contrary is shown; Paramore v. Lindsey, 63 Mo. 66; Gooch v. Bryant, 13 Me. 386; Her rick v. Malin, 22 Wend. (N. Y.) 388; North River Meadow Co. v. Christ Church, 22 N. J. L. 424, 53 Am. Rep. 258.

See INTERLINEATION ; SPOLIATION.