#### Schwalm vs. McIntyre, impleaded &c.

Whether a written contract offered in in evidence should be rejected because it appears upon its face to have been altered since its execution, or whether the legal presumption would bé that such alterations were made before its delivery, is not here decided.

Where a written instrument offered in evidence was rejected on improper grounds, a judgment against the party offering it will not be reversed for that reason, if proof was afterwards made of facts showing that the instrument was not entitled to be considered in evidence.

*233A contract, signed by R. & M., .to deliver to the plaintiff a certain quantity of wood, was altered by R. at the plaintiff’s request, by inserting the words, “It is to be good hard wood.” *Held,*

1. That the alteration was material.

2. That the instrument could not be read in evidence ugainst M. without previously showing that the alteration was authorized by him.

Such authority could not be inferred from M.’s having signed with R. the instrument as originally drawn, and left it in R.’s possession to be delivered to the plaintiff.

The object of secs. 92 and 99, chap. 13?, R. S., is only to dispense with proof of the signature of the party sought to be charged upon a written instrument; and such party is at liberty to show a subsequent alteration of the instrument without having denied its execution by a verified answer.

APPEAL from' tbe County Court of *Winnebago*County.

This was an action against *William Roache*and *A. McIntyre*upon a written contract for the delivery of wood. The complaint avers a failure to fulfill the contract, and damages. *McIntyre*answered by a general denial. The pleadings were not verified. On the trial, the plaintiff,offered in evidence the written contract declared upon, which, after the date, was as follows : “ For value received, I promise to deliver to *L. Schwalm*or bearer, at Oshkosh, forty cords of wood, on or before the 20th day of June, 1862. It is to be good hard wood. William Roache, A. McIhtyre.” The defendant *McIntyre*objected to the evidence, on the ground that it appeared upon the face of the instrument that two alterations had been made in the body of it. The court sustained the objection, and decided that the instrument could not be received in evidence unless said alterations were explained. The plaintiff, as a witness in his own behalf, then testified: “I first saw the note'at my store in Oshkosh. It was brought there by the defendant *Roache.*I think the words “ at Oshkosh ” were in it when I first saw it. When *Roache*handed me the note, I told him it did not comply with our contract; that it had to be good hard wood. He said it would not make much difference, as he had only hard wood; he would however put it in. He then put in the words, ‘ It is to be good hard wood,’ and I took the note.” The note was then again offered in evidence, and rejected, as evidence *234against *McIntyre^*on the ground that it had been altered after it was executed by bim. Judgment of nonsuit was rendered in favor of McIntyre, on bis motion; and tbe plaintiff appealed.

*Whittemore*& *Weisbrod,*for appellant,

cited secs. 99 and 92, cb. 137, E, S., and *Whitman v. Wood,*6 Wis., 678. 2. They also contended that it was not apparent upon tbe face of tbe, contract that any alterations bad been made in tbe body of it since its execution. 3. When tbe question is, whether a material alteration, apparent upon tbe face of a written instrument, was made before or after execution, tbe instrument, with all tbe circumstances of its history, its nature, tbe appearance of tbe alterations, the possible or probable motives to tbe alteration, and its effect upon tbe parties respectively, ought to be submitted to tbe jury. *Maylee v. Sniffen,*2 E. D. Smith, 1 ; *Same Case,*10 N. Y. Leg. Obs., 18. 4. The contract should have been received after tbe alteration bad been explained by tbe plaintiff’s testimony. It is to be presumed that *McIntyre*knew tbe nature of tbe previous verbal contract between tbe parties, as well as *Hoache;*that they intended *to*express its provisions in the chattel note; and that after tbe signing of tbe same, *McIntyre*delivered it to *Itoache*for tbe purpose of consummating tbe verbal contract, and carrying it into effect. But this authority carries with it, as an incident, all tbe powers which are necessary as means to effectuate tbe purpose for which it was created. In this respect there is no distinction, whether tbe authority given to an agent is general or special, or whether it is express or implied. In each case it embraces tbe appropriate means to accomplish tbe desired end. Story on Agency, § 97, and note 1; *Vliet vs. Gamp,*13 Wis., 198. Thus where an agent is employed to procure a negotiable bill or note, belonging to bis principal, to be discounted, be may, unless specially restricted, indorse it in tbe name of tbe principal, and bind bim by tbe indorsement. Story on Agency, § 97, and note 2. Even in regard to bills of exchange and promissory notes, an *addition or correction*to supply or declare *235the *real intention*of the parties, may, at common law, be made, even after a bill or note has been in circulation. Chitty on Bills, 166, 184, 185, and cases cited. Again, the alteration made before delivery was not material, because the law certainly would imply that it must be good wood, and if the judge had not ruled out the chattel note the plaintiff might have shown by extrinsic evidence, that, by the custom of the country, none but hard wood could have been meant. An immaterial alteration does not effect the validity of a note, even as against a surety. *Arnold vs. Jones,*2 E, 1, 345; *Heed vs. Kemp,*16 Ill., 445.

*Earl P. Finch,*for respondent.

*By the Court,*

Paime, J.

It is unnecessary to determine whether or not the court below was right in rejecting the note or contract offered in evidence, until the plaintiff had explained what appeared to be alterations upon the face of it. For even though th'e legal presumption, in the absence of any proof to the contrary, may have been, as claimed by the appellant, that such alterations had been made before delivery, yet the plaintiff himself afterwards testified that the alteration as to the quality of the wood was made by the defendant *Boache*after the instrument was signed by *McIntyre,*and without anything to show that it was done by his knowledge or consent. That alteration was certainly a material addition to the contract, and it cannot be claimed that *McIntyre*was bound by it, as altered, unless it is shown that he authorized the alteration : and the burden of showing that was on the plaintiff. Even though the court erred, then, as to the presumption to be derived from the face of the paper, without any other proof, yet the judgment should not be reversed for that error, when the subsequent proof of the plaintiff showed that to be true which the court had presumed, thereby devolving on the plaintiff the burden of showing that the alteration was authorized by *McIntyre,*if he wished to charge him.

*236And no snob authority could be inferred from the fact that *McIntyre*had signed the instrument as originally drawn, together with Eoache, and left it in the possession of the latter to be delivered to the plaintiff. The appellant’s counsel compare it to the case of an agent employed to negotiate commercial paper, where, unless specially restricted, he may indorse it so as to bind the principal. An indorsement is a usual mode of transfer, and an agent, being employed to transfer, may well be held to have authority to transfer in the usual mode unless restricted. But it is not usual for a mere joint contract- or to add new provisions to the contract, so as to bind his co-contractor. Hence there is nothing on which to found such an implied authority.

The appellant’s counsel rely strongly upon section 99, chap. 137, R. S., which provides that “in actions against two or more defendants upon contracts in writing alleged to have been executed by such defendants as partners or otherwise, proof of the joint liability shall not be required, to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by answer denying the execution of such writing, verified by affidavit.” The answer here did not deny the execution of the contract; hence, it is said, the defendants could not disprove their liability by showing that it had been’ altered. But it has been held that the object of that provision now found in section 92, chapter 137, was merely to dispense with the necessity of proving the signature to a' contract or other writing, and- that the party might prove alterations, although he had not denied the signature. *Low vs.*Merrill, Burnett’s Beports, 185. And we have come to the conclusion that section 99 can have no other effect, even in cases where it is applicable. And it would seem to be necessary, after the enactment of sections .92 and 98, only in cases where instruments are signed by some firm name or style which does not specify the names of all the parties to the firm, or joint contract. In such case, the paper itself being in evidence, no further proof should be necessary *237to show that those defendants whose names did not appear on the paper were justly liable with those whose names did appear, unless the execution of the writing was denied. And in any event, the object of these provisions being only to dispense with proof of the signature of the party, he is left at full liberty, in cases where he cannot truly deny the signature, to show all other defenses, among which would be a subsequent alteration of the instrument.

For these reasons the j udgment is affirmed, with costs.