merely correct a mistake is a question for the jury.260 And the erasure may be explained by parol evidence.261 And a court of equity may direct the reform of an instrument by an alteration correcting a mistake of the drawer, even upon application of the drawer himself. 262

Consent to Alteration.

§ 1766. An alteration is binding upon all parties consenting to it,203 although other parties not consenting may be discharged.264 So, if a bill is altered at the drawer's request before acceptance, it will not be rendered void. 265 And, even where a bill is fraudulently altered by the drawer after indorsement, if it comes again into the indorser's hands, and is afterwards presented by him to the drawee and accepted, the acceptance will be binding.266 And the acceptor will be liable, if the alteration is made by him,267 or with his con"order," Cariss v. Tattersall, 2 Man. & G. 890; or correct an omission which the law would itself supply, Hunt v. Adams, 6 Mass. 519. But see, as to date, Owings v. Arnot, 33 Mo. 406; and interest clause, Evans v. Foreman, 60 Mo. 449. If made without fraud, it may be restored in equity, Wallace v. Tice (Or.) 51 Pac. 733; but only on complete rescission, Glover v. Green, 96 Ga. 127, 22 S. E. 664.

260 Byles, Bills, 327; Attwood v. Griffin, Ryan & M. 425, 2 Car. & P. 368; Boyd v. Brotherson, 10 Wend. (N. Y.) 93; Brutt v. Picard, Ryan & M. 37; Gwin v. Anderson, 91 Ga. 827, 18 S. E. 43. And an alteration fraudulently made will not permit a restoration of the original bill.

10, 33 S. W. 567.

261 Bernstien v. Ricks, 20 La. Ann. 409.

McDaniel v. Whitsett, 96 Tenn.

262 Chit. Bills, 213; Ball v. Storie, 1 Sim. & S. 210.

263 Byles, Bills, 326; Chit. Bills, 214; 2 Daniel, Neg. Inst. 412; 2 Pars. Notes & B. 565; Sherrington v. Jermyn, 3 Car. & P. 374; Kershaw v. Cox, 3 Esp. 246; Downes v. Richardson, 5 Barn. & Ald. 674; Tarleton v. Shingler, 7 C. B. 812; Catton v. Simpson, 8 Adol. & E. 136; Sutton v. Toomer, 7 Barn. & C. 416; Crum v. Abbott, 2 McLean, 233, Fed. Cas. No. 3,454; Wilson v. Jamieson, 7 Pa. St. 126; Grimsted v. Briggs, 4 Iowa. 559; King v. Hunt, 13 Mo. 97; Pulliam v. Withers, 8 Dana (Ky.) 98; Hollis v. Vandergrift, 5 Houst. (Del.) 521: Jacobs v. Gilreath, 45 S. C. 46, 22 S. E. 757; Landauer v. Improvement Co. (S. D.) 72 N. W. 467; Schmelz v. Rix, 95 Va. 509, 28 S. E. 890.

264 Warring v. Williams, 8 Pick. (Mass.) 322.

265 Chit. Bills, 212; Peacock v. Murrell, 2 Starkie, 558; Upstone v. Marchant, 2 Barn. & C. 10, 3 Dowl. & R. 198.

266 Ward v. Allen, 2 Metc. (Mass.) 53.

267 E. g. by changing the date. Johnson v. Duke of Marlborough, 2 Starkie,

sent,268 although it discharge the drawer and indorsers who do not consent. 269 Where a second maker is added in the body of a bond, and signs it under a previous agreement between the first obligor and the holder, the first obligor will not be discharged.270 And, if the maker agrees with the payee to have the note altered, he will not be discharged, although it is actually done without his knowledge and after the time proposed for it. So, where the amount is changed to restore the note to the original intention of the parties, it will not discharge such parties. Some foreign statutes provide expressly that, after a bill has been delivered, it can only be altered by consent of all the parties.273

271

The consent of a party may be given afterwards by way of ratification, or its place may be supplied by a waiver, or the party may be barred from objecting to the alteration by acts amounting to an es toppel on his part. These will all be considered more particularly hereafter.

313. So, where the change was made by an accidental flourish of the pen. Rateliff v. Bank, 2 Sneed (Tenn.) 424.

268 Byles, Bills, 324; Chit. Bills, 211; Stevens v. Lloyd, Moody & M. 292; Walter v. Cubley, 2 Cromp. & M. 151, 4 Tyrw. 87.

269 Byles, Bills, 326; Chit. Bills, 216; Walton v. Hastings, 4 Camp. 223, 1 Starkie, 215.

270 Camden Bank v. Hall, 14 N. J. Law, 583; Dodge v. Pringle, 29 Law J. Exch. 115.

271 Wardlow v. List. 20 Cent. Law. J. 237. 272 Clute v. Small, 17 Wend. (N. Y.) 238.

course," to carry out the original intention. 383.

So, the addition of "without reLuth v. Stewart, 6 Vict. Law R.

273 COLOMBIA (Code Com. art. 391); COSTA RICA (Code Com. art. 380): ECUADOR (Code Com., as in "Spain"); MEXICO (Code Com. art. 328); PERU (Code Com. art. 390); SALVADOR (Code Com. art. 388); SPAIN (Code Com. art. 433).

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Consent-How Proved.

278

§ 1767. Consent to an alteration is a question for the jury,274 and will not be presumed.275 But it need not be in writing,276 except where it involves an agreement (e. g. as to rate of interest) required by the statute to be in writing.277 Parol evidence is admissible to show that the parties sued on a note consented to the alteration,2 or even to prove a parol authority to add "whatever counsel might suggest to make it legal," although the alteration was made afterwards and not shown to the maker.2 279 An alteration made by the drawer on the authority of the acceptor,280 or by the maker on the authority of a surety,281 will bind the party authorizing it. And, if an alteration is consented to by one indorser on condition that the maker get the consent of the other, the first indorser cannot afterwards repudiate the note, although the maker fails to get the other's consent.282 So, where a note is given for an insurance premium, and the maker's policy is increased by his own direction, and the amount of the note is increased to correspond with it by his agent without his knowledge, he will not be allowed to set up such alteration. 283

Consent Implied from Blank.

§ 1768. Where a party executes a bill or note, and delivers it with any material part left blank, an authority to fill such blank

274 2 Daniel, Neg. Inst. 412; 2 Pars. Bills & N. 565; Semple v. Cole, 3 Jur. 268; Hocker v. Jamison, 2 Watts & S. (Pa.) 438; Bailey v. Taylor, 11 Conn 531; Richmond Mfg. Co. v. Davis, 7 Blackf. (Ind.) 412; Bowers v. Jewell, 2 N. H. 543; Jacobs v. Gilreath, 45 S. C. 46, 22 S. E. 757.

275 Humphreys v. Guillow, 13 N. H. 385; Toomer v. Rutland, 57 Ala. 379. But see, contra, where it is merely the striking out of an indorsement, Warner v. Spencer, 7 J. J. Marsh. (Ky.) 341.

276 Stewart v. Bank, 40 Mich. 348.

277 Swift v. Barber, 28 Mich. 503.

278 Myers v. Nell, 84 Pa. St. 369.

279 Taddiken v. Cantrell, 69 N. Y. 597.

280 Johnson v. Garnett, 2 Chit. 122.

281 Prather v. Zulauf, 38 Ind. 155.

282 Stoddard v. Penniman, 113 Mass. 386.

283 Merchants' & Manufacturers' Ins. Co. v. Maguire, 1 Mo. App. 223.

RAND.C.P.-157

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is presumed as against a bona fide holder for value.284 But a space left is not necessarily a blank, and gives no authority to add the words "or his order" after the payee's name,285 or to strike out such words, and insert in a space between them and the name the words "or bearer." 286 So, where a note is altered by the maker from $8 to $80, and from 9 to 90 days, by additions in spaces left without negligence by an accommodation indorser on signing the note, he will be discharged even at suit of a bona fide holder.287 So, where a note was delivered with an agreement that the place of payment should be left blank, and it was afterwards filled by the holder, the maker was discharged from all liability, even to a bona fide purchaser. 288 And where one signs his name on a blank paper for the purpose of having his signature identified, and a note is afterwards printed over it, it will be a forgery and create no liability by estoppel.289 But where the payee indorses a check in blank, and delivers it to a clerk to make a deposit, and the clerk fills in the indorsement and transfers the check and misappropriates the proceeds, the purchaser will be protected.290 If a blank left for a particular purpose is fraudulently filled up in a different manner, it will be a forgery; 291 although it was given to a clerk for a special purpose, and appropriated by him to his own use, without authority, in payment of salary actually due him.292 So, where a note is indorsed in blank in England to a French indorsee, and is filled up by him specially with date, consideration, etc., to make it conform to the

284 See $$ 76, 181, et seq., supra.

285 Bruce v. Westcott, 3 Barb. (N. Y.) 374; or to add "or bearer," or a place of payment, Simmons v. Atkinson, 69 Miss. 862, 12 South. 263.

286 The alteration being made by a clerk who broke open the letter given him to mail. Belknap v. Bank, 100 Mass. 376.

287 Leas v. Walls, 101 Pa. St. 57; Fordyce v. Kosminski, 49 Ark. 40, 3 S. W. 892; Burrows v. Klunk, 70 Md. 451, 17 Atl. 378. And see §§ 182, 187,

supra.

288 Charlton v. Reed, 61 Iowa, 166, 16 N., W. 64.

289 Caulkins v. Whisler, 29 Iowa, 495. But see McDonald v. Bank, 27 Iowa, 319.

290 People v. Bank, 75 N. Y. 547.

291 State v. Kroeger, 47 Mo. 552.

292 Reg. v. Wilson, 2 Car. & K. 527; Flower v. Shaw, Id. 703.

laws of France, it will be rendered void.29

In like manner, a blank

294

left for the payee's name gives no authority to change the date; nor a blank for time and place of payment,295 or for the amount,296 to add an interest clause. If the date is left blank, it authorizes the insertion of a true date, but not a false one, as between the original parties. 297

§ 1769.

298

or to

If a bill is accepted with the payee's name blank, a bona fide holder may fill the blank with his own name." So, authority to add another surety will be implied by a blank left for it. 299 So, the drawer's name may be added to a bill accepted with a blank for the drawer, even after the acceptor's death.300 So, authority is implied to fill a blank left for the time of payment,301 add a place of payment in a blank after the word "at." 302 And, although the word is part of the printed form, such insertion by the maker will not discharge an accommodation indorser who had already signed.303 But where the name of a bank is inserted after the word "at," making the note negotiable by statute, it has been held to discharge other parties.304 If a blank is left for the rate of interest, it

293 Hirschfeld v. Smith, L. R. 1 C. P. 340. As to filling blank indorsements in general, see §§ 188, 708, supra.

294 Bland v. O'Hagan, 64 N. C. 471.

295 McGrath v. Clark, 56 N. Y. 34.

296 Franklin Life Ins. Co. v. Courtney, 60 Ind. 134.

297 Overton v. Matthews, 35 Ark. 146.

298 Byles, Bills, 327; Chit. Bills, 212; Attwood v. Griffin, Ryan & M. 425; Thompson v. Rathbun, 18 Or. 202, 22 Pac. 837. And see § 185, supra.

299 Bank of Commonwealth v. McChord, 4 Dana (Ky.) 191.

300 Carter v. White, 25 Ch. Div. 666.

301 Wilson v. Henderson, 9 Smedes & M. (Miss.) 375. But not to add "on demand" to the words ". after date," Farmers' Nat. Bank v. Thomas, 79 Hun, 595, 29 N. Y. Supp. 837; although he might fill in the number “in months"; Lowden v. Bank, 38 Kan. 533, 16 Pac. 748. And see § 186, supra. 302 Cason v. Bank, 97 Ky. 487, 31 S. W. 40; although not originally so intended, Kitchen v. Place, 41 Barb. (N. Y.) 465; Redlich v. Doll, 54 N. Y. 237. Especially where a space was negligently left blank after the printed words "payable at the bank of -" Winter v. Pool, 104 Ala. 580, 16 South. 543; or where the consent of one maker was obtained, and the action was brought by a bona fide holder, Canon v. Grigsby, 116 Ill. 151, 5 N. E. 362. But see contra, Gwin v. Anderson, 91 Ga. 827, 18 S. E. 43. And see § 186, supra. 303 Wessell v. Glenn, 108 Pa. St. 105. 804 Cronkhite v. Nebeker, 81 Ind. 319.