Valley v. Lockwood, 13 W. Va. 392; 31 Am. Rep. 768; Townsend v. Star Wagon Co., 10 Neb. 615; 35 Am. Rep. 493.) Any material alteration of a note without the consent of the sureties, or of any parties sought to be charged, extinguishes their liability even against an innocent payee or holder. (2 Parsons on Contracts, 716, 717; 9 Am. & Eng. Ency of Law, 81; Wilde v. Armsby, 6 Cush. 314; Britton v. Dierker, 46 Mo. 591; 2 Am. Rep. 553; Draper v. Wood, 112 Mass. 315; 17 Am. Rep. 92; Greenfield Sav. Bank v. Stowell, 123 Mass. 196; 25 Am. Rep. 67; McGrath v. Clark, 56 N. Y. 34; 15 Am. Rep. 372; Lisle v. Rogers, 18 B. Mon. 528; Aldrich v. Smith, 37 Mich. 468; 26 Am. Rep. 536; Aetna Nat. Bank v. Winchester, 43 Conn. 391; Trigg v. Taylor, supra; Morehead v. Parkersburg Nat. Bank, supra; Bank of Ohio Valley v. Lockwood, supra; White v. Haas, supra; Oakley v. Wilcox, supra; Cowie v. Halsall, 4 Barn. & Ald. 197; Rex v. Treble, 2 Taunt. 328; Tidmarsh v. Grover, 1 Maule & S. 735; Sudler v. Collins, 2 Houst. 538; Burchfield v. Moore, 25 Eng. L. & Eq. 123; Mackintosh v. Haydon, Ryan & M. 362; Wood v. Steele, 6 Wall. 80; Angle v. Northwestern Mut. Life Ins. Co., 92 U. S. 330; Mersman v. Werges, 112 U. S. 141; Civ. Code, sec. 2836; Goodman v. Eastman, 4 N. H. 462; Aetna Nat. Bank v. Winchester, supra.) While the San Jacinto Lumber Company received the benefit of the note, it did not authorize the contract that was in fact sent to plaintiff, and it cannot be held liable on a contract that it did not make.

Anderson & Anderson, for Respondent.

As the four sureties were stockholders in the company, and received some benefit from the loan, they are in a different position from mere accommodation indorsers or sureties, and they should be estopped from claiming that they are released by this act of their cosurety and agent, with which the plaintiff had nothing to do, and by which they were not injured in any way. As the instrument sued on provides for attorney's fees, it is not negotiable, and an alteration in a non-negotiable

instrument changing the place of payment is not so material as to release sureties. (First Nat. Bank v. Babcock, 94 Cal. 104; 28 Am. St. Rep. 94.) Having received plaintiff's money on the note and used it, the defendant corporation is certainly estopped to deny the authority of its president to deliver the note in the form that plaintiff received it.

VANCLIEF, C.-This appeal is from a judgment on a promissory note made by the San Jacinto Lumber Company to the plaintiff, and alleged to have been indorsed by the other appellants, and by M. T. Winton and D. M. McDonald, who are also defendants.

The defense pleaded by appellants is, that the note was materially altered without their knowledge or consent after it was signed by the corporation and indorsed by the other appellants, but before delivery to plaintiff.

The appeal is upon the judgment-roll without a bill of exceptions, and the only matter in controversy is whether or not the findings of fact by the court warrant the judgment against appellants.

The pertinent facts found are substantially as follows: On May 21, 1890, the corporation defendant was about to obtain a loan of two thousand one hundred dollars from the plaintiff, who then resided in the state of New York, and to secure the payment of such loan was to make its promissory note with indorsers. The note was drawn and signed at Los Angeles, California, May 1, 1890, by the corporation, through the agency of its president, M. T. Winton, and its secretary, F. M. Caswell, and immediately thereafter was indorsed by the appellants, Caswell and Fuller, and left with the president, Winton, for the purpose of procuring additional indorsers. As thus signed by the corporation and indorsed by Caswell and Fuller the note was payable six months after date, but no place of payment was designated therein. Afterward, in the absence of Caswell and Fuller, and without their knowledge or consent, Winton altered the note so as to make it payable "at

the Ilion National Bank, Ilion, N. Y."; and, after so altered, the note was indorsed by Winton and D. M. McDonald, and by them sent to plaintiff in New York, who thereupon loaned to the defendant said sum of two thousand one hundred dollars, without notice of said alteration of the note. The note contained a clause requiring the payment of attorney's fees in case of suit thereon. All the indorsers of the note were stockholders in the corporation defendant, before and at the time each indorsed the note, but it does not appear how much stock either of them owned.

At the maturity of the note it was presented for payment at the Ilion Bank, New York, and payment demanded, but was not paid; and thereupon was duly protested for nonpayment, of all which due notice was given to the indorsers.

When the case came on to be tried it was dismissed as against Winton, but for what reason does not appear; but a joint judgment was rendered against all the other defendants for the full amount of principal and interest of the note. The defendant, McDonald, has not appealed.

That the alteration of the note was material, and such as would discharge sureties, whether indorsers or guarantors, is unquestionable. Before the alteration, and as indorsed by Caswell and Fuller, the note, whether negotiable or not, was payable only in this state (Civ. Code, secs. 1489, 3100); but, after the alteration, it was payable only at a designated bank in the state of New York, unless the payee elected to accept payment elsewhere. (Woodworth v. Bank of America, 19 Johns. 391; 10 Am. Dec. 239, and notes 267; Pahlman v. Taylor, 75 Ill. 629; Morehead v. Parkersburg Nat. Bank, 5 W. Va. 74; 13 Am. Rep. 636; Tiedeman on Commercial Paper, sec. 394; 1 Greenleaf on Evidence, sec. 565; Brandt on Suretyship, secs. 381-90.)

These propositions, as general rules, are not controverted by counsel for respondent, but they contend that by reason of the circumstance that Caswell and Fuller

were stockholders of the corporation defendant, and, by virtue of that relation, would be indirectly and incidentally benefited by the loan, they are not entitled to the favor accorded by law to uninterested sureties. But to this point they have cited no authority, and I have found none.

Conceding that Caswell and Fuller were indirectly benefited, the benefit could have been only in proportion to the stock owned by them at the time of the loan, and to that extent they were made personally liable by force of section 322 of the Civil Code, independently of any contract. But they are not sued on their statutory liability. The pleadings do not show even that they were stockholders; and the mere finding that they were so is of no consequence in this action, since a judgment in their favor in this action cannot affect their statutory liability. They are sued on an alleged contract which, according to the findings of fact, they never executed. The proposed contract indorsed by them was never completely executed for want of delivery to plaintiff. (Brandt on Suretyship, sec. 388.) It follows, I think, that the findings of fact do not warrant the judgment against either Caswell or Fuller.

But, as I read the findings, the president of the corporation was authorized to negotiate the loan and to secure it by the corporation note, with indorsers; that, accordingly, he drew the note and delivered it to the plaintiff in the form described in the complaint, that being an ordinary form; that the plaintiff accepted the note and loaned the money to the corporation thereon in good faith; and that the alteration complained of by the first indorsers was made by the agent of the corporation before delivery of the note to plaintiff. Upon this state of the facts, I think the alteration of the note is not available to the corporation as a defense to the action.

I think the judgment against the San Jacinto Lumber Company should be affirmed, but as against the defendants Caswell and Fuller that it should be reversed; and

that the court below should be instructed to modify the judgment accordingly.

SEARLS, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment against the San Jacinto Lumber Company is affirmed, but as against the defendants Caswell and Fuller it is reversed; and the court below is instructed to modify the judgment accordingly.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

[Sac. No. 105. Department Two.-May 26, 1896.] LAFAYETTE DICKEY, RESPONDENT, v. CRECENCIA GIBSON, EXECUTRIX, APPELLANT.

HOMESTEAD HUSBAND AND WIFE-MORTGAGE BY SURVIVOR AFT SECOND MARRIAGE.-A homestead selected by a husband from his separate property during the lifetime of his first wife vested absolutely in him upon her death, as fully as if no homestead had ever been carved out of it, and although it remained exempt from forced sale, the husband's title having vested at the death of his first wife, is not affected by a second marriage; and the husband alone can mortgage the homestead without the signature of his second wife, notwithstanding residence upon the homestead with her, and with his children by both wives, prior to the execution of the mortgage.

ID. FORECLOSURE OF MORTGAGE-AMENDMENT OF CLERICAL MISTAKES— FINDINGS DECREE-NOTICE.-In an action to foreclose, clerical misprisions in the findings as to the amounts due on the note, and in the decree as to the description of the property, which are apparent upon the record, may be corrected by the court on its motion, with or without notice, and the fact that no notice was given of such amendment is not ground of reversal upon appeal.

APPEAL from a judgment of the Superior Court of Stanislaus County. WILLIAM O. MINOR, Judge.

The facts are stated in the opinion.

C. W. Eastin, for Appellant.

The homestead was not subject to the subsequent debt of the surviving spouse. (Tyrrell v. Baldwin, 78 Cal. 470; Gruell v. Seybolt, 82 Cal. 7; Civ. Code, secs.