Hollis v. Vandergrift

10 Del. 521

• Court: Superior Court of Delaware
• Decided: July 1, 1879
• Status: Published

Opinion

The Court,

Comegys, C.

charged the jury: That the action would lie upon the two promissory notes in question severally against the defendant as one of the three alleged joint makers of them under the provision of the statute referred to, although they appeared in terms to be their joint promissory notes only, and unless some otl^er defense had been proved in the case to the satisfaction of the jury, their verdict should be in favor of the plaintiff. As to the alleged alterations in the notes, it having been clearly proved in the case that the words “& Co.” were expressly objected to by the defendant and were erased from them for that reason before they were signed by him and Leonard G. Vandergrift, and that John A. Vandergrift knew and approved of it before he delivered them to the plaintiff, it could not and should not have any effect under such circumstances, to invalidate the notes or to defeat the right of the plaintiff to recover upon them in the action. But if the other alteration, the words “ or order ” interlined in them, which the court considered a material alteration, as it made the notes negotiable, which they were not without them, and thereby changed the character of-them in a very material respect, were inserted in them by John A. Vandergrift or by any other person after they had been signed by the defendant and it was done without his knowledge and consent, it would vitiate and avoid the notes as to him, and the plaintiff could not recover on them against him, unless it had been proved to the satisfaction of the jury that the alteration referred to had so been made in them and that he approved of it; but his subsequent execution with the other two makers of the two judgment bonds for the amounts of them respectively after their maturity could not have that effect or constitute a recognition or approval of the alteration on his part, unless the jury were satisfied from the evidence that he knew when he executed the judgment bonds that such alteration had been made in them, and which were then in the possession of the plaintiff. The doctrine of law as to the presumptions of facts which arise in relation to alleged material alterations in written instruments, when unexplained by direct and positive evidence recognized and ruled in this court, he stated and read from the charge to the jury in the ease of Welch v. Coulborn, 3 Houst. 647.

The jury retired, and after being out a long time without being able to agree upon a verdict, were discharged by the court.