ARK.] INGLISH ET AL. VS. BEI:NT:MAN. 377 INGLISH ET AL. vs. BRETEMAN. A promissory note, payable two years after date. is delivered by the makers to the payee—a blank is left for the date after the delivery, the blank is filled-by the holder with a day prior to the del ivery. without the knowledge or consent of the makers. It seems such note is.v It is immaterial who makes such an alteration, the notes ceases to be the same obligation. The changing, erasing, or insertion of a date, Is followed by the same consequences. 411
:37-S INGLIS:1 ET AL. -vs. PalENEMAN. L3 Any alteration of any instrument in a material part, avoids it ; and this rule Is founded in good poliey, and protects such instruments from violation. If, when delivered, the note was perfect, an alteration would be as much effected by inserting a date, as by changing it. Date is not necessary to the validity of a note—date is computed from the delivery. Date is prime facie evidence of the making on the day of the date. Any alteration of an instrument in a material point, whether for the benefit of the payor or not. without his consent vaitiatcs it • Where the date has 6– reference to the time of performance, it is of no consequence ; and if so inserted to declare the real intention of the parties; or, if inserted at the time of actual delivery. The filling up of a blank date in a promissory note by the holder, to whom it had been delivered, is an alteration. Where a man indorses a note, with blanks for date and amount, and entrusts to the maker, he gives him a letter . of credit, for an indefinite sum ; and, by implication, constitutes the maker his agent to fill the blanks. While the note is incomplete, it is not the obligation of the parties, and any alteration, affected by the person entrusted with it, is presumed to be by consent of the others ; but when delivered, and has become an available security, the implied authority ceases and an authority, in Net, Is necessary. Upon non est factum, pleaded to such altered note, it devolved upon the plaintiff to prove his authority to insert the date. Pope vs. Latham, 1 Ark., (id, cited. A deed cannot be delivered to the obligee as an escrow. Tms was an action of assumpsit, determined in the Tu lask i Circuit Court, at September term, 1842, before the Hon. JOHN J. Ci-EN DEN N one of the circuit judges. Breneman sued Inglish & Johnson., Win. Cummins and L. Gibson, on a promissory note, dated 4th :\farc!.. 1839, and. due twenty-four months after date. Gibson was not servel with process; and a discontinuance, as to him, was entered. The other parties to the note pleaded non assampsit, verified by affidavit. Upon the trial, the following facts, set out in the bill of exceptions. were given in evidence: "That the signatures of the defendants and Lorenzo Gibson were genuine, and that William K. :English an:I Thomas H. Johnson were partners before, on, and after the 4th day of March, A. D. 1837, under the firm of Inglish & johnson, and the note and endorsement thereof were read in evidence. It was furthei. proven, that the note was given by Iriglisli & -Johnson, to Brungard, for goods purchased by them of him; that it ' was signed by all 1;11,2 makers of it, while it bore date — day of • March, A. D. 1839, &lid was delivered to Brungard, in the latter part of March, or early April, 1839, che blank as to the day or the month beng then unfilled. The parties were two or three weeks engaged in :making ,:ut the inventory of the goods sold, having commenced doing ,E , ) cri the 4th day of March, 1839, or somewhere about. that time. Viis being all the evidence in the eke, -the court was moved bY the plaintiff to in- -
ABE.] INGIAS.11 ET Aid. vs. BRENEM 4N. 379 struet the jury, as follows: That a party, who signs a promissory note in blank, thereby authorizes the holder to whom he delivers it, to fill it up with any date or amount, and the maker or endorser, as the eabe may be, will be responsible: That under the plea of non assumpsit, sworn to in this case, it devolves upon the defendant to prove that the blank date was filled up contrary to the agreement of the partij, and that the parties did agree upon some particular day, different from that contained in the note, and that a deed or bond cannot be delivered to the obligee as an escrow, assimilating its note in this case to a bond; and that the filling up a blank date in a promissory note by the holder to whom it is delivered, is not an alteration or erasure of it. To all which instructiom , the defendant objected, and mo:ed the court to instruct the jury, that the plaintiff, in order to support the issue in this ease, must have proven that the defendants executed the identical instrument offered in evidence, either by executing it in the shape it now bears, or by assenting to, or authorizing, any alteration made or to be made subsequent to the signing it: That if a note is executed, dated in blank, and delivered to the payee, and the payee fills up the blank with a date prior to the time of the actual delivery of it, ie devolves upon the payee to prove an authority to fill, such blank, or the assent of defendants to such Mini, up; and that the blank being filled after the note was delivered, the presumption .is, that it was filled by the payee or assignee having the custody of it, and that an alteration in a material part by either, without the consent of the defendants, prior or subsequent, avoids the note; whereupon the court refused to give the instructions asked by the defendants. and gave all the instructions asked by th'e plaintiff. To the giving such instructions and refusing the others, defendants excepted. The jury found for the plaintiff. The ease came here by writ of error. Cummins, Trapnall & Cocke, for plaintiffs. Ashley & Watkins, contra. By the Court, SEBASTIAN, J. The only question raised by the bill of exceptions, is, whether the filling up' of the blank for the date
3SO . 1 NC L1SH ET AL. VS. BRENEMAN. was- such an alteration as avoided the note. The evidence fully tahlishes the fact, that the blank for the . date was unfilled when finally. 41olivered to Brungard, and that the date was afterwards inserted -either by him, or by Breneman, as, in the absence of evidence to the contrary, the legal presumption is, that it was inserted by one :who had the legal custody of the note. According to the view which we entertain, it is immaterial whether the alteration were by them,, or"by any other person, as it would - not then be. the saine obligation, and this is the question raised by the pleadings. Masters vs. Miller, 4. Rep. 32d. • 1 t is quite immaterial whether the alteration -is effected b y th , e changing, erasing, or inserting, a date,...the legal consequences are the same. The principle extracted from „ all 03 cases is,- that any . alteration in a Material part of any instrument or . agreement, avoids.it , becauSe it thereby ceases to be the same instru-Tent. It is a rule, founded in good sense and policy, and protects. the 'integrity of such instruments , from violation by refusing to alter tlwm. Every sanction to their safety and uninterrupted eircula-. tion„ .free from alteration, should be afforded. If . the note, when signed and finally : delivered . by the payors to the payee, was perfect , and of legal obligation, an alteration could be effected as the. insertion of a date, Where it had been omitted, as by the changing. od. a date, already affixed, because; then the obligation•of the parties is altered. The date was not necessary to the validity:of the . note, and in that shape, after delivery, it was the, legal and definite Obliga:: thm, and afforded a legal right of action to the . payee. ' Chit. on. Bills_ 168. Armet vs. Breame, 2 : Ld. Raym. 1076. Giles vs. Bourne, 6 M. & 8. 73. 2 Qhit. Rep. .300. Lansing . vs. •Gains, 2 J. R. 300' and numerous cases which establish the principle mentioned, and that the date in such cases, is computed from the delivery or issueing. It is advisable in most cases to'insert a date, as i t t his been considered that the date is prima facie evidence of its having been made an the. day of the date. Taylor vs.. Kinlock, 1 Starkie.175; but the' question ewhich we are considering is not whether the note in that shape was imperfect in form, but whether it was perfect in obligation. The note was due two years after date, which, according to the cases above, was to be computed from the day of its delivery, which was about.
INGLISII ET AL. vs. BEENE..:A.N. 381 the last of March, or first of April. The date inserted was the 4th day of March, by which the day of payment . was acce'erated nearly one *nth. The , legal operation, therefore, of, the, n . o te . ,. wh . en de-. livered, was not the same which it imported after-its alteration. This, - was the very principle of the case of Master vs. iqia , Tenn.. Rep. 320, in , which the date of an acceptance had. been , altered from .the 26th to the 20th day of . March, .by which the day ,of payment , had been accelerated, .a:ad, the note held to .he avoided. . And the law is the same, where,. the alteration . by the payee, without the , consent .of, the payor, by which the time of payment • is retarded, Rank _of United . Stales vs. Russell (0. Robne; 3 'eates! Rep , . 39:1.. Any ,altera,-, tion in a material point,!wliether for the . ben . e f , i . t. . of , th . e -payo,r,or not, , without his consent. vitiates the instrument; and the date, thougb not 3 ,material to give legal vitalit y to the note, was made, material. in this, case, as fixing the time of payment. If . the date . had , heen,itntruk-., terial. as where its office is onl y to. fix the time of excentien. and does not have any reference to the time of performance, its insertion would; be of no consequence, or, if- inserted only , to stipply.,or declare the, real intention of the puties,.it would ' not vitiate the n ote.: AbcOoci . ..; vs. Griffin, Ryan & Mo. 425,;. or. if. the date had .beFn :inserted in accordance with the actual time of.execution and. deAvery,, it would!' not have avoided the. obli o• ation,. for .in. such ,case it is still the same obligation. The application .of these . principles to the case Was no.t,'• however, warranted by . the, facts 'before the ,jury,.. which showed no. mistake to be corrected, .and, expressly disproved . the truth of the date •as evidence . of the time of the execution. According to the prineiples before referred:to,. the eirenit court wft not warranted in charging the jur y `That- th e. filling . . ip pr a hlank date in a promissory note by the holder, to whom is delivered, is; not an alternation . or erasure of it:". There . is a . class of. eases where the filling of blanks is no Avoidance af the note, and winch will bind the other parties on the ground of ,a presumed.,or actual consent to such alteration. When a person .endorSes a. note. With blanks, for date, sum, &c.. and entrusts it to the -maker, he.thereby, gives. him -a letter of credit for an indefinite sum . , and constitutes, him. by . implicar tion of law, his agent in the filling up of the blanks. Russell . vs.,Lang;
382 INGL1S11 ET AL. 12S. JIHENEMAN [5 staff, 2 Doug. 516. (2 (Join. Rep. S. C. 516, Violet vs. Patton.) Bank of the Commonwealth vs. McChord & Payne, 4 Dana's Rep. 191, and the law is the same, where one of several* co-obligors in a note, signs it in blank and delivers it to the other payee. He thereby gives him a general authority to fill it up at his discretion. Do::a Rep. 191. The reason upon which these cases proceed is, that while the note is incomplete and in fieri, it is not the obligation of the parties, and that any alteration effected by the persons to whom it is entrusted, is presumed to be by the consent of the others. This distinction pervades all the cases of implied authority. But as soon as the instrument is complete by passing into the hands of another . person, and becomes an available security, such implied authority ceases, and an authority, in fact, is necessary ; because any alteration then . made without the consent of the other parties, either changes their, contract, or creates an obligation where none subsisted before, and such was the ground upon which the ease of Crutchly vs. Mann, 5 Taunt. 534, was decided. In that and many other eases cited at the bar, where parties have been held bound, alterations after the negotiation of the note, they were so declared, not because it was the ease of a blank, but because there was an express authori.ty to fill it. When, therefore, the note in this case was in the hands of any one of the co-obligors before delivery, it would have been competent for any one of them, to whom it was entrusted, to have filled up the blank, because this was not inconsistent with the general authority resulting by law, and the whole 'matter might be said to he still in fieri; but as soon as it was delivered to the payee, it was beyond their control, and Brungard having accepted it in that condition, as perfect, was not at liberty, without the assent of the payers, to insert a date different from the true date. It therefore devolved upon the plaintiff to prove his authority to insert the date of 4th March, which he failed to do. Upon general non est fectum, the proof lies upon the plaintiff. Pope vs. Latham:1 Ark. Rep. 66. We therefore aink„ that the court erred in overruling all of the instruction. which the defendants asked, and erred also. in givin g all the instructions asked by the plaintiff, except so far as he charp . ed the plaintiff, that a deed cannot be delivered to the obligee as an escrow. The circuit court
ARK.] 383 should have told the jury that, in such case, no ;11,thority was implied hy law, but that it requires express authority to fill up the date, which might be proved by direct testimony, or inferred from circumstances. Inasmuch as the instructions of the court probably influenced the jury materially, in their finding, we must reverse the judgment, and remand the case for a new trial, with instructions to be proceeded in, according to law, and not inconsistent with this opinion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.