§ 1903. Alterations advantageous to the obligor.

An alteration is none the less material because the change in the contract is advantageous to the obligor.24 Thus where a later day of payment is substituted the obligation is avoided. 25 So where a smaller amount is substituted in an obligation," or, where the specified rate of interest is altered to a lower rate,27 or where the name of a joint obligor or co-surety 28 or of a prior

obligor 29 is added. The addition of a collateral guaranty does not, however, discharge the principal debtor 30 for the addition neither increases nor diminishes his immediate liability or his ultimate equitable liability. The same is true of the erasure of the name of a collateral guarantor.31

§ 1904. Materiality of the addition of a surety's name.

If, however, a surety's name is added in such a way that he incurs or purports to incur at law a joint obligation with others previously bound by the instrument, the alteration seems technically a material one, though his equitable liability is one of suretyship, for the alteration if effective would create a new and different obligation at law on the part of the previous obligors. They could be sued jointly with the surety. The answer adopted in one decision 32 to this reasoning is that the surety having signed after delivery of the note was not in fact a joint maker, and that as the original maker could effectively object to the joinder of the new signer the former's obligation remained unaltered. But this is unsound. An alteration to which he has not consented never binds an obligor. He is discharged not because an alteration is in legal effect wrought upon his obligation, but because it purports to be; and in the case in question the obligation of the defendant was on the face of the instrument changed to a joint obligation. Nevertheless, on account of the hardship of the case the addition has in

If the addition is without the knowledge of the obligee, it is an alteration by a stranger and hence in the United States would generally have no effect. Anderson v. Bellenger, 87 Ala. 334, 6 So. 82, 4 L. R. A. 680, 13 Am. St. Rep. 46; Ward v. Hackett, 30 Minn. 150, 14 N. W. 578, 44 Am. Rep. 187; Standard Cable Co. v. Stone, 35 N. Y. App. Div. 62, 54 N. Y. S. 383.

29 Haskell v. Champion, 30 Mo. 136; Oklahoma Sash & Door Co. v. American Bonding Co. (Okl.), 153 Pac. 1151, 170 Pac. 511; Handsaker v. Pedersen, 71 Wash. 218, 128 Pac. 230.

30 Ex parte Yates, 2 De G. & J. 191; First Bank v. Weidenbeck, 97 Fed.

896, 38 C. C. A. 131; Baker v. Lehman, 186 Ala. 493, 65 So. 321; Burnham v. Gosnell, 47 Mo. App. 637; Wallace v. Jewell, 21 Ohio St. 163, 172, 8 Am. Rep. 48; Hutches v. J. I. Case Co., 35 S. W. 60 (Tex. Civ. App.). See a fortiori cases cited infra, n. 34. Cf. Oneale v. Long, 4 Cranch, 60, 2 L. Ed. 550.

31 First Bank v. Weidenbeck, 97 Fed. 896, 38 C. C. A. 131; Broughton v. West, 8 Ga. 248; People v. Call, 1 Denio, 120, 43 Am. Dec. 655; Huntington v. Finch, 3 Ohio St. 445.

32 McCaughey v. Smith, 27 N. Y. 39. See also Ex parte Yates, 2 De G. & J. 191; Bowser v. Rendell, 31 Ind. 128.

such a case frequently been held immaterial. 33 But there are many cases enforcing the strict rule.34

1905. Criticism of decisions.

In two cases 35 where the name added created or purported to create a several liability on the part of the new signer the previous signer was held not discharged because no joint liability was created. The terms of the legal obligation of the previous signer are certainly not affected by such an addition, but if the consequence of carrying out the obligation assumed by the new signer is that equitably the latter must pay equally with the previous signer, the contract is certainly altered by the added signature. Such is the situation where the new signer is a co-surety. If, however, the only previous signer is the principal debtor, the alteration is immaterial for he remains liable immediately at law and ultimately in equity for the whole and the altered writing does not indicate the contrary.

§ 1906. What alterations are immaterial.

The following changes have

33 Ex parte Yates, 2 De G. & J. 191; Mersman v. Werges, 112 U. S. 139, 28 L. Ed. 641, 5 S. Ct. 65; Montgomery Railroad v. Hurst, 9 Ala. 513; Rudulph v. Brewer, 96 Ala. 189, 11 So. 314 (overruled); Bowser v. Rendell, 31 Ind. 128; Taylor v. Acom, 1 Ind. Ty. 436, 45 S. W. 130; Stone v. White, 8 Gray, 589; Miller v. Finley, 26 Mich. 249; Barnes v. Van Keuren, 31 Neb. 165, 47 N. W. 848; Royse v. State Bank, 50 Neb. 16, 69 N. W. 301, 12 Am. Rep. 306; McCaughey v. Smith, 27 N. Y. 39; Hecker v. Mahler, 64 Ohio St. 398, 60 N. E. 555. See also Ryan v. First Bank, 148 Ill. 349, 35 N. E. 1120; Heath v. Blake, 28 S. C. 406, 5 S. E. 842.

34 Gardner v. Walsh, 5 E. & B. 83; First Bank v. Weidenbeck, 81 Fed. 271 (reversed, 97 Fed. 896, 38 C. C. A. 131); Brown v. Johnson, 127 Ala. 292, 28 So. 579, 51 L. R. A. 403, 85 Am. St. Rep. 134 (overruling Montgomery R.

been held immaterial: the al

Co. v. Hurst, 9 Ala. 513, and, it seems, Rudulph v. Brewer, 96 Ala. 189, 11 So. 314); Soaps v. Eichberg, 42 Ill. App. 375; Bowers v. Briggs, 20 Ind. 139; Nicholson v. Combs, 90 Ind. 515, 46 Am. Rep. 229; Dickerman v. Miner, 43 Ia. 508; Hamilton v. Hooper, 46 Ia. 515, 26 Am. Rep. 161; Sullivan ». Rudisill, 63 Ia. 158, 18 N. W. 856; Browning v. Gosnell, 91 Ia. 448, 59 N. W. 340; Rhoades v. Leach, 93 Ia. 337, 61 N. W. 988, 57 Am. St. Rep. 281; Shipp v. Suggett, 9 B. Mon. 5; Singleton v. McQuerry, 85 Ky. 41, 2 S. W. 652; Lunt v. Silver, 5 Mo. App. 186; Farmers' Bank v. Myers, 50 Mo. App. 157; Allen v. Dorman, 57 Mo. App. 288; Wright v. Kelley, 4 Lans. 57; Harper v. Stroud, 41 Tex. 367; Ford #. Cameron Bank, 34 S. W. Rep. 684 (Tex. Civ. App.).

35 Collins v. Prosser, 1 B. & C. 682; Brownell v. Winnie, 29 N. Y. 400, 86 Am. Dec. 314.

teration of the name of the grantee 36 or grantor 37 or other party 38 by correcting a mistake in spelling or initials, where no change in the person designated is intended or apparently indicated; the insertion of a more specific description of the mortgaged property in a chattel mortgage; 39 the addition in a bond to pay a judgment of a provision for payment of legal costs, since that was the effect of the bond originally; 40 and, by the weight of authority, the insertion or alteration of a date when that does not alter the legal effect of the instrument by changing the day of maturity or otherwise; 41 but under the Negotiable Instruments Law a change of the date in such an instrument is now material.41a Other immaterial alterations are, the insertion of the name of the obligor in the body of a bond, after the execution of the bond,42 since the obligor would be liable though his name had not been inserted; the alteration of the courses named in a deed where the alteration was required by the context and was in accordance with the facts; 43 the insertion of a recital of unessential circumstances; 44 the addition 45 or cancellation 6 of words of description, or the addition of a place of residence 47 after the signature of an obli

36 State v. Dean, 40 Mo. 464; Cole v. Hills, 44 N. H. 227; Derby v. Thrall, 44 Vt. 413, 8 Am. Rep. 389. See also Blenkiron Bros. v. Rogers, 87 Neb. 716, 127 N. W. 1062, 31 L. R. A. (N. S.) 127, Ann. Cas. 1912 A. 1043.

37 Banks v. Lee, 73 Ga. 25. 38 Re Howgate & Osborn's Contract, [1902] 1 Ch. 451.

39 Starr v. Blatner, 76 Ia. 356, 41 N. W. 41; Chicago Trust Co. v. O'Marr, 18 Mont. 568, 46 Pac. 809, 47 Pac. 4. See also Heman v. Gilliam, 171 Mo. 258, 71 S. W. 163; Gunter v. Addy, 58 S. C. 178, 36 S. E. 553. But see contra, McKinney v. Cabell, 24 Ind. App. 676, 57 N. E. 598, which went on the ground that the more specific description would charge third persons with notice. See further s. c., 31 Ind. App. 548, 68 N. E. 601.

40 Kleeb v. Bard, 12 Wash. 140, 40 Pac. 733.

41 Parry v. Nicholson, 13 M. & W.

778; Gill v. Hopkins, 19 Ill. App. 74; Lee v. Lee, 83 Ia. 565, 50 N. W. 33; Prather v. Zulauf, 38 Ind. 155; Terry v. Hazlewood, 1 Duv. 104; State v. Miller, 3 Gill, 335; Hepler v. Mt. Carmel Bank, 97 Pa. 420, 39 Am. Rep. 813; Whiting v. Daniel, 1 Hen. & M. 391; Bashaw's Adm. v. Wallace's Adm., 45 S. E. Rep. 290, 101 Va. 733.

41a Sec. 125 (1), supra, § 1193, following the English Bills of Exch. Act, § 64 (2).

42 Smith v. Crooker, 5 Mass. 538. 43 Burnham v. Ayer, 35 N. H. 351.

44 Rudesill v. County Court, 85 Ill.

446.

45 Manufacturers' Bank v. Follett, 11 R. I. 92, 23 Am. Rep. 418 (agent).

4 Burlingame v. Brewster, 79 Ill. 515, 22 Am. Rep. 177; Marx v. Luling Assoc., 17 Tex. Civ. App. 408, 43 S. W. 596.

47 Struthers v. Kendall, 41 Pa. 214,

gor; the erasure of the name of a surety, so far as the principal debtor is concerned. 48 Though the Negotiable Instruments Act provides that "any alteration which changes . . . the number or the relation of the parties" is material, 48 an indorsement of a negotiable instrument subsequent to its delivery will not invalidate the obligations of prior parties. 485 The addition of a memorandum, which does not purport to form part of the document itself is not an alteration; 49 and under this last rule the addition or alteration of the figures indicating the amount of a bill or note is immaterial, if the body of the writing clearly states the amount, 50 for the figures are rather a memorandum