Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-03-12


Luther C. White and the Victor Sewing Ma
chine Company, Copartners as L. c. White
& Co., Appellants, vs.. Theodore w. Keith
ly and ID. W. Johns, Respondents.
note preceding the signatures of the maxi
ers of bond and stating that certain words
have been inserted in the bond before the af6x-
ing of the signatures, is not a part of the bond
itself. An alteration of bond which en-
larges the liability of the oblgators is material
and avoids tho bond.
OPINION.
As respects the defendant Johns (the only
party upon whom summons was served this is
an action upon bond executed by him and one
Keithly, and written upon the back of certain
contract executed by Keithly and the plaintiffs.
The condition of the bond as it is set out in the
complaint, and as it appered in the instrument
itself when it was put in evidence upon the
trial, is as follows: 1.-THE condition Of the OBJ
legation is such, that whereas there is
an unsettled account between said L. C. White
s. Co. and Theo. w. Keithly as their agent, if
the above bounden, Theo. w. Keithly,
shall pay unto the said L. G. White & Co. all
moneys or Indebtedness which shall be found
due on settling said account, or which shall be-
come due said Il. @. White & Co. under and
pursuant to the within contract on which
shall arise therefrom, whether by note, open
account, endorsement or otherwise, and shall
well and truly perform, in all respects, the
contract on which this obligation is endorsed,
executed between the said Theodore w. Keith
ly and said L. G. White & Co., dated this twen-
ty-seventh day of August, A. D. 1873, then this
obligation shall be null and void, otherwise to
remain in full force and effect" Immediately
after this condition and above the signtures of
the defendants is the following. Note the fol-
lowing words inserted above before signatures
ia
count between said L. G. White & Co. and
said Theodore w. Keithly as their agent now be
found, due on settling such account or which
SHALL One of the defences set up in his an
sWer by defendant Johns, is that the bond had
without his consent been materially
the insertion of the words: Whereas
there is an unsettled account between said T..
! G. White d Co. and said Theo. w. Keithly as
their agent, and the words "be found due on
settling. such account, or which shall.
Although !. th rs mo. note appears ear the
of the bond proper. for it in
no way enlarges, restricts, qualities, explains,
OF in any manner or degree affects the meaning
of that which precedes it. It is just what it
purports to be-a mere note or memorandum
as if it were written upon the bond, or upon a
separate paper attached to or referring to the
bond. In other words, it is simple admis-
sion-a piece Of evidence. In order, then, to
properly set up the alteration of the bond, it
was not necessary to make any allegation with
reference to the note, and as the note was valu-
able only as an admission piece of evidence
lit was competent for the defendant Johns to
confront it by evidence going to show that he
never made it. And to do this it was obvious
ly unnecessary for him to plead that he never
made it. As to the matter of proof of the
Lalteration of the bond there is competent evi-
dence as respects the condition of the bond
(as we'll as the note) sufficient to
support the referees finding that
the alleged alterations were made
without the knowledge or consent of the de-
PENDANT. If the alterations were material, the
bond in accordance with well settled rule of
Law, is void. If the alterations had the effect
to enlarge the liability Of the defendant Johns,
they were material, because they materially
altered his agreement to his prejudice. That
lthey did enlarge his liability is apparent. We
livery much doubt if without the alterations the
icondition of the bond extended at all to the
unsettled account for the proceeds of all ma
chimes Heretofore sold by Keithly, mentioned
in the sixth clause Of the contract, upon which
the bond is endorsed. But if it did, it is quite
apparent, as is suggested by the court below,
that it did not extend to the entire unsettled
account between said Keithly and L. G. White
q Co., which, as appears from the exhibits in
the case, embraced items other than the proceeds
of the machines sold. The further remark Of
the court below, that unless the design of the
alteration was to increase the liability OF the
makers of the bond, it was entirely unnecessary
would seem to be not without force.
Order denying new trial affirmed.
/ BERRY.
/ ID lite % ID