not, as a conclusion of law, a substantial compliance with an agreement to build one fifty feet in width by one hundred and fifty in length, although the former may cost more, is of greater value, and better adapted to the purposes to be accomplished; and even though the contract attempted to be satisfied by such a building is that a mortgagee will surrender for cancellation a mortgage, and accept as security instead insurance policies, to a certain amount, upon the saw-mill when completed according to the dimensions stated. But if the mortgagee acquiesces in the departure from the plan and dimensions, and accepts the policies of insurance thereon, he waives all objections to the variation in the construction of the mill, and cannot, on account of such variation, refuse to cancel or surrender the mortgage. Swain v. Seamens, 9 Wall., 254 (§§ 1742-46).

₫ 1653. A. contracted with B. for three thousand hogs to be delivered as required according to notice to be given. There was some failure to deliver the hogs as required by the contract, but A., without giving notice of the termination of the contract, demanded and received from B. a certain number of hogs, and then declined to receive any more. Held, that by demanding and receiving such hogs, A. had waived the breach of the contract, and was liable to B. for the difference between the contract price and the market price at the time of his refusal. McNaughter v. Cassally,* 4 McL., 530.

§ 1654. Waiver of forfeiture.- Where a contract to furnish materials by a certain time stipulates that if not so furnished the builder shall forfeit ten per cent., and the builder continues to furnish materials after the expiration of the time, the acquiescence of the other party will be construed to be a waiver of the forfeiture. Lester v. United States,* 1 Ct. Cl., 58. § 1655. Waiver of fraud.— If a party, with knowledge that a contract is affected by fraud, offers to perform it upon the performance of a condition he has no right to exact, such offer is a waiver of the fraud. Blydenburgh v. Welsh, Bald., 338.

§ 1656. Failure to object to account rendered. In the case of a continuing contract objections to accounts made and rendered between the parties should be made at the time the accounts are rendered. It is too late after the contract is in suit. Chapin v. Norton,* 6 McL., 500.

$1657. Merger.- Where parties to one contract execute a second which differs from the first, they must be deemed to have voluntarily abandoned the first contract, and they cannot recover under the first when performing under the second. Parish v. United States,* 1 Ct. Cl., 366.

§ 1658. Where a new contract has been substituted for an old one, and then has been repudiated by the plaintiff, that fact forms a good defense in an action on the original contract. Hitchcock v. City of Galveston, 3 Woods, 293.

§ 1659. Where a new contract is made between the same parties and in relation to the same subject-matter, the old will not be merged in the new unless it be delivered up and canceled, or it seems unless they are wholly inconsistent with each other. Avery v. Hackley, 20 Wall., 411.

$1660. A simple contract debt is not extinguished by a later sealed instrument which merely recognizes the debt and provides a mode to ascertain its amount and liquidation. Bank of Columbia v. Patterson, 9 Cr., 299. Nor where such subsequent instrument is but a collateral undertaking to come to a settlement within a limited period, and pay the balance found due, where the period has elapsed before suit, and it is not alleged that such settlement has been made. Baits v. Peters, 9 Wheat., 556 (§ 1617).

§ 1661. An executed agreement is not extinguished by the mere recital of it in a later one, although the latter be under seal. Bank of Columbia v. Patterson, 7 Cranch, 290 (§3 32–39). § 1682. After the execution of a chattel mortgage the parties entered into a new agreement by which, on his giving proper security, the mortgagor should receive back the goods and sell them, and apply the proceeds to the debt. In an action on such contract, it was held to be no defense to the action that the mortgage had been assigned to the security, and that the new agreement was a substitute for the mortgage, and that the creditor relied on the personal security of the debtor and the security rather than on the mortgage. Harper v. Neff, 6 McL., 391.

§ 1663. The agent of an insurance company entered into a bond to the company conditioned that he should faithfully perform his duties and faithfully pay over all moneys, etc., and which provided that it should continue in force during the continuance of the agreement as to commissions under which it was entered into, and during the continuance of any future agreement. Two years afterwards a new contract was entered into between the company and the agent, which provided for a different compensation, and which provided that it should abrogate all former contracts as far as new business was concerned. Held, that the bond was not abrogated by the new contract. Boogher v. Insurance Co., 13 Otto, 98.

§ 1661. Discharge - By impossibility. When the performance of a contract is rendered impossible by a fortuitous event, the parties are freed from its obligations. So where the

prosecution of a voyage has become impossible because of shipwreck, seamen and vessel are discharged from the obligation of the contract as to the prosecution of the voyage. The Dawn, Dav., 127.

§ 1885. An impossibility of performance which will release a party from the obligation of his contract must be a real impossibility and not a mere inconvenience. While such an impossibility may release the party from liability for non-performance, it does not so stand for performance as to enable the party to sue and recover as if he had performed, or to recover the prospective profits of his contract. Smoot's Case, 15 Wall., 46.

§ 1656. — by the admission of new partners.—A contract between a bank and a firm is terminated if new partners are admitted into the firm without the knowledge and consent of the bank. National Bank v. Hall, 11 Otto, 43 (SS 11-14).

§ 1667. by subsequently becoming illegal.-If a contract of insurance was lawful when it was made, and the performance of it is rendered illegal by a subsequent law, the parties are both discharged from its obligation. The insured loses his indemnity and the premium may be recovered back. Gray v. Sims, 3 Wash., 280.

§ 1668.

where the other party prevents a performance.-If the plaintiff is a consenting party to a proceeding which of itself puts it out of the power of the defendant to perform his contract, he cannot recover on it, for promisors will be discharged from all liability when the non-performance of their obligation is caused by the act or fault of the other contracting party. Clearwater v. Meredith, 1 Wall., 39.

§ 1669. A release without consideration.- A release by a person of his rights, under a contract which was entirely without consideration on his part, is a total abandonment of it, and this is true, though the release was without consideration. Dorsey v. Packwood, 12 How., 138.

§ 1670. Where there is no compromise, a payment of a sum of money smaller than a debt does not discharge the larger amount. One party to a contract cannot, without the assent of the other, discharge a debt by the payment of a smaller sum than the amount due. Baird v. United States,* Dev., 41 (117).

§ 1671. A gift of what is due on a contract cannot be made to the person who owes it, otherwise than by a release under seal. If a part of a debt be paid, and the creditor gives a receipt expressing that the money is received in full of all demands, still it seems that the obligation to pay the balance will remain wholly unaffected, unless there be some additional consideration to discharge it. Wood v. United States,* Dev., 57 (175).

§ 1672. A written renunciation, not under seal, of a portion of the profits arising under a contract under seal, cannot operate as a release or defeasance. Culbertson v. Stillinger, Taney, 79.

§ 1673. Accommodation acceptor released by contract between maker and indorser. — Where the maker and indorser of a bill enter into an agreement by which the accommodation acceptor of the bill is relieved from liability, the fact that one party to such agreement has failed to perform is not available as against the acceptor to continue his liability. The acceptor is released by the agreement, and questions of non-performance must be settled between the parties to the contract. Farmers' Bank of Virginia v. Groves, 12 How., 5).

§ 1674. Agreement by third person to stand in place of one of two sureties.- A. and B. by an instrument under scal promised to become sureties for a sum due from C. to D. By an indorsement in writing on an instrument not under seal, P. promised to perform A.'s part of the engagement. Held, that this agreement, if between P. and D., did not discharge B., the other obligor, as P. was a stranger to the bond, and that if the agreement was between A. and D., then it could not release B., because it was only an agreement in parol, and as such could not release a writing under seal. Garnett v. Macon, 2 Marsh., 224.

§ 1675. Discharge of surety by modification of the contract.- Where the terms upon which a person is employed by another are substantially changed, the surety for the faithful performance of the original contract will be released if he did not assent to the modification. Gass v. Stinson, 2 Sumn., 459.

§ 1676. Where a release is given to one of two joint obligors the obligation is extinguished as to all, and although it is most apparent that such was not the intention of the obligee, yet equity will not relieve. Willings v. Consequa, Pet. C. C., ¿07.

§ 1677. A covenant not to sae one joint promisor or obligor is not a release even of that one, and a fortiori not of the others. Tuthill v. Babcock, 2 Woodb. & M., 302.

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VII. ALTERATION OF CONTRACTS.

§ 1678. Alterations in bonds.-The tearing off of the seals of a bond by the obligor is not such an alteration as will avoid it. Cutts v. United States, 1 Gall., 71.

§ 1679. If the seal to a written instrument is torn off with the assent of the obligee, either by mistake or by fraud, or imposition practiced by the obligor, it may still be declared on as a bond, and the obligee can recover. United States v. Spaulding, 2 Mason, 483.

§ 1680. A bond forty years old appeared to have been altered by substituting Virginia for North Carolina, and the signature of the obligor seemed to have been scratched out and rewritten. There being no proof that these alterations were made by the obligee, and no motive which would lead him to make them being apparent, and it appearing that they could not in any sense increase the obligation of the obligor, or increase the interest of the obligee, it was held that the alterations did not affect the validity of the bond. If the alterations had increased the sum to be paid, or the quantity of land to be conveyed, or had shortened the time within which the obligation was to be discharged, a motive might have been assigned for the alteration, and the part altered being mater.al, it would have vitiated the bond. Walton v. Coulson, 1 McL., 122.

§ 1381. After a bond was given by consent of all parties, the name of one of the obligors was erased and another substituted. Held. that the alteration did not invalidate the bond. At common law an alteration or addition in a deed, as by adding a new obligor, or an erasure in the deed, as by adding a new obligor, if done with the consent and concurrence of all the parties to the deed, does not avoid it; and this is equally true whether the alteration or erasure be made in pursuance of an agreement and consent prior or subsequent to the execution of the deed. (LIVINGSTON, J., dissented.) Speake v. United States, 9 Cr., 36.

§ 1682. It seems that if seals are subsequently affixed by the obligee to names signed to a bond, then such sealing is such an alteration that it renders the bond invalid, but that if the alteration is made by a stranger it is immaterial. United States v. Linn, 1 How., 110.

§ 1683. Alterations in a bond by changing the state of the obligor's residence, and erasing and writing in again the obligor's name, made subsequently to the death of the obligee, do not enlarge or affect the liabilities of the obligor, and are immaterial. Where such bond was for a time in the possession of parties holding adversely to the bond, it will be presumed that the alterations were made at that time. Coulson v. Walton, 9 Pet., 78.

§ 1684. An interlineation made in the bond of a collector after it was signed by the surety, by which certain additional duties were required of the collector, is such an alteration as discharges the bond not only as to the conditions inserted, but as to the conditions embraced in it at the time it was signed. The alteration renders the contract void. Miller v. Stewart, 4 Wash., 28.

§ 1685. Two persons signed their names as sureties to a printed form of a bond in which none of the blanks were filled and before it was signed by the principal. The bond was afterwards filled up, but without the express direction or assent of either of the sureties. Held, that as to the sureties the bond was void. United States v. Nelson, 2 Marsh., 69.

§ 1683. An alteration made in a bond by a clerk in the custom-house, who was a witness to it, by erasing one word and substituting another, which made the bond sensible and unambiguous, and which made it as it was intended to be by the parties, was held not to be material and not to avoid the bond. United States v. Hatch, 1 Paine, 342.

§ 1687. Alterations in commercial paper. The alteration of a note, whereby the time of payment is extended, does not make the note void as against the maker. Union Bank v. Cook, 2 Cr. C. C., 218.

§ 1688. If a note is drawn payable in sixty days, and so indorsed is presented at a bank for discount and is there altered to forty-five days at the request of the bank, such alteration renders the note void as to all the parties not authorizing it, or ratifying it thereafter. Bank of Washington v. Way, 2 Cr. C. C., 250.

§ 1689. An alteration of a note by the erasure of the words indicating the place of payment is not a material alteration. The rights of the maker are enlarged thereby and in no way limited, and he has no right to complain. Major v. Hansen, 2 Biss., 196.

§ 1690. Where, after a note is made and delivered to the payee at a piace in Pennsylvania, the words "Washington, D. C.," are added to the signa.ure without the maker's knowledge and consent, for the purpose of using such words as a part of the date of the note for the purpose of making it negotiable according to the laws of such District, then such alteration is such a material alteration as makes the note void. Commercial & Farmers' Bank v. Patterson, 2 Cr. C. C., 348.

§ 1691. An alteration of the date of payment in any commercial paper is a material alteration, and if made without the consent of the party to be charged it extinguishes his liabil

ity. The law regards such security after it is altered as an entire forgery with respect to the party who has not consented, and so far as he is concerned it deals accordingly. Wood v. Steele, 6 Wall.. 81.

§ 1692. Alteration in deeds.—The testimony of witnesses, that a deed has been altered by erasing the name of the grantee and inserting another, will not affect the validity of the deed when it appears from an inspection of the deed that there has been no such alteration, and that the witnesses are laboring under an obvious mistake of fact. Tucker v. Ormes,* 1 MacArth., 654.

§ 1693. While a deed is in force between parties both must resort to it to ascertain their rights, and cannot claim such rights from any inferior or different source. Any action to enforce the provisions of such deed must be upon the instrument itself. But where the terms of the contract as contained in the deed have been altered or modified by agreement of the parties, actions originally arising out of the deed may be varied in conformity with such new agreements. Fresh v. Gilson,* 16 Pet., 327.

§ 1694. A Mexican grant was altered while in the hands of the claimants, and though apparent on the face of the paper the alteration was unexplained. The supreme court refused to confirm the grant for this and other reasons. United States v. Galbraith, 22 How., 96. § 1695. Written contract altered by oral one.— When parties have reduced their contracts to writing, conversations controlling or changing their stipulations are, in the absence of fraud, no more received in a court of equity than in a court of law. Willard v. Tayloe, 8 Wall., 573.

§ 1696. A written contract sometimes may be varied by a subsequent oral agreement resting on a new consideration. Emerson v. Slater, 22 How., 28 (§ 1785–90).

§ 1697. In trover for certain notes the defendant proved an oral agreement that he was to retain the notes as counter security, and it was held that the oral agreement controlled a written agreement to return the notes on demand. McIntosh v. Summers,* 1 Cr. C. C., 41. § 1698. A written contract may be modified, and either enlarged or restricted by a subsequent valid parol agreement. But if such parol agreement enlarged the original contract, and extended it to matters not before embraced in it, then the rights of the parties in respect thereto arise under the parol contract and are determined by it. It is, in this event, a new contract, and it is a parol contract, though it may refer for part of its terms to another contract in writing of the same character existing between the parties; but such reference does not make the new contract a written contract, nor does it alter the meaning, force or operation of the written contract. Hening v. United States Ins. Co., 2 Dill., 37.

§ 1699. Contract under seal varied by subsequent parol one.- Whatever the rule at law may once have been, it is now the rule in equity that the terms of a contract under seal may be varied by a subsequent parol agreement. Canal Co. v. Ray, 11 Otto, 522 (§ 1351).

§ 1700. Parol authority to alter a sealed instrument.- A parol authority is adequate to authorize ap alteration or addition to a sealed instrument, or the filling of blanks left in it at the time of execution. Drury v. Foster, 2 Wall., 83.

§ 1701. Lease under seal varied by subsequent final settlement.-A lease under seal may be put an end to by a new agreement in relation to the same premises in the nature of a final settlement, which has received the sanction of a court of chancery and has been performed by the party who sets up the new agreement. Scott v. Hawsman, 2 McL., 181.

:

§ 1702. A material alteration of a written instrument renders it void. The agent of an insurance company negotiated a loan from it to B. B. forwarded a proper mortgage therefor, and by agreement was to receive in return the amount of the loan in drafts to his order. At the request of the agent, B. signed a printed order in blank, which read: "To Pay to dollars, on account of, in drafts to the order of The signature of B. was in the last blank, immediately after the printed word. The agent promised to fill out the blanks and obtain the money for him; but, in filling the blanks, he erased the words "in drafts to the order of." and wrote instead, "in current funds." The. agent drew the money and absconded. Held, that the alteration by the agent vitiated the order, and that the loss must fall on the company. Angle v. Northwestern Mutual Life Ins. Co., 2 Otto, 335.

§ 1703. Alteration discharges surety.- A surety cannot, either at law or in equity, be bound further than he is by the very terms of his contract; and, if the parties to the original contract think proper to change its terms without the consent of the surety, he is discharged. Miller v. Stewart, 4 Wash., 28.

1704. Alterations in a contract excuse a guarantor, unless made with his consent. So where E. guarantied the credit of R. in a contract between him and D., and these two subsequently altered the mode of payment under the contract, without consent of E., it was held that E. was excused from liability as guarantor. Edmondston v. Drake, 5 Pet., 624 (§§ 217– 220).

§ 1705. Party producing instrument must account for alterations. It seems that where any suspicion is raised as to the genuineness of an altered instrument, whether it be apparent on inspection or made so by extraneous evidence, the party producing the instrument and claiming under it is bound to remove the suspicion by accounting for the alteration. Smith United States, 2 Wall., 232.

§ 1706. presumption.

Where an alteration is apparent in a contract it is incumbent upon the party setting up the contract to account for and explain the alteration, and not having explained it, it must be presumed that the alteration was made after the execution of the contract. The Cypress, Bl. & How., $7.

§ 1707. Presumption as to interlineations and erasures.- Where a material erasure andinterlineation are found in a deed or in a settled account, the presumption is that it was made after execution, and is sufficient to avoid the deed upon a plea of non est factum. Prevost v. Gratz, Pet. C. C., 369.

§ 1708. If an interlineation in a contract is in itself suspicious, if it appears to be contrary to the probable meaning of the instrument as it stood before the insertion of the interlined words, or if it is in a handwriting different from the body of the instrument, or it appears to have been written in a different ink, in all such cases, if the court considers the interlineation suspicious on its face, the presumption will be that it was an unauthorized alteration after execution. On the other hand, if the interlineation appears in the usual handwriting with the original instrument, bears no evidence on its face of having been made subsequent to the execution of the instrument, and especially if it only makes clear what was the evident intention of the parties, the law will presume that it was made in good faith and before execution. Cox v. Palmer, 1 McC., 434.

§ 1769. The fact of alteration for the jury-Materiality for the court.-The question whether or not an alteration has been made in a written contract is one of fact for the jury. The question whether or not an alteration is material is a question of law for the court. Steele v. Spencer, 1 Pet., 560; Wood v. Steele, 6 Wall., 81.

§ 1710. Changes assented to by the other party.- Where the changes in a contract necessarily imply an increased price, and the employer expressly authorizes it, or silently with full knowledge assents to it, then he is bound to pay the increased price. Huston v. United States,* Dev., 57 (174).

§ 1711. Alteratior against the interest of the party claiming under it. An alteration of an instrument which is obviously against the interest of the person claiming under it cannot be imputed to him, and is consequently immaterial as to him. United States v. De Haro, 22 How., 298.

§ 1712. An oral alteration in an oral ing of the contract becomes a part of it. § 1713. Change in quantity and price of tea sold not a change as to quality. If a contract be entered into for the delivery of a certain quantity and quality of tea at a certain price, a subsequent change in the quantity and price does not change the obligation of the contract as to the quality, unless it appears that such was the intention of the parties. Youqua v. Nixon,* Pet. C. C., 223.

contract made by consent of parties after the makWalker v. Johnson, 6 Otto, 421 (§§ 1792–96).

§ 1714. Alteration supersedes prior proposed terms.- Where negotiations have been pending for the supply of certain articles, and an alteration is made in the proposed terms, though under protest, the parties cannot be heard to deny that it did not supersede the propose arrangement. Parish v. United States, 8 Wall., 490.

§ 1715. Modification as affecting third party.- Where a written contract provides for the security up to a certain amount of persons making advances contemplated by the contract, no modification of the contract will affect the right of the third party making such advances to the contemplated security, whether such modification is made before or after the making of the advances. Hubbard v. Beelew,* 10 Fed. R., 849.

§ 1716. Amendment construed most strongly against party signing it. Where an aniendment to a contract is not clear in its terms, and is signed by only one of the parties, it will be construed most strongly against the party signing it, especially where the change was made for his accommodation, and the construction contended for corresponds with the intention of the party suggesting the alteration as expressed by his acts thereunder. Garrison v. United States, 7 Wall., 690.

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