Summary
In Dunn v. Clements, 52 N.C. 59, held, that retracing the name of the obligor, which had faded, does not avoid, although the name was misspelled in retracing, the sound of the name being the same.
Summary of this case from Wicker v. JonesOpinion
(December Term, 1859.)
Where the obligee in a bond attempted to retrace part of the obligor's name, which had been blotted with ink and obscured, and in doing so misspelled it, but not so as to alter the sound (no fraud being imputable to the act), it was Held that the obligation was not thereby avoided.
ACTION OF DEBT ordered out of the Supreme Court, in aid of a suit in equity between the same parties pending there, tried before Shepherd, J., at the last Fall Term of MARTIN.
W. B. Rodman for plaintiffs.
P. H. Winston, Jr., for defendant.
The action was upon a bond for $100, which had been given by the defendant to the plaintiffs' testator, and signed by him thus: Peregrine P. Clements. It appeared, from inspecting the paper, that ink had fallen upon the paper at the name, and that in attempting to wipe it off the latter part of the surname had been nearly obliterated, and that an attempt had been made to restore it; that in doing so the letters "gran" had been traced over the blotted space instead of "grine," so as to make the name "Peregran" instead of "Peregrine." This alteration was proved not to be the handwriting of the defendant.
The court held that if the alteration described was made by (59) the obligee, or by those who represented him, it would avoid the bond. For this plaintiffs' counsel excepted.
The plaintiffs' counsel asked the court to charge the jury that they ought to presume the alteration to have been made by a stranger rather than the obligee, and that there was no evidence that it was made by the obligee.
The court declined giving the instruction asked for, but charged that there was no evidence that the alteration had been made by a stranger, nor was there any presumption of law or fact to be given to them; that, on the other hand, there was evidence against the obligee from his ownership and custody of the bond; that the burden was on the plaintiffs to account for the alteration, as the paper was in their possession, and that they had offered no evidence to explain it. The plaintiffs' counsel again excepted.
Verdict and judgment for the defendant, and appeal by the plaintiffs.
The instruction given by the court below as to the effect of the alteration is not without the warrant of some earlier decisions, but we think is not in accordance with the later cases and with the better reasoning on the subject.
The case before us seems to have been a clumsy attempt to restore the name of the obligor after it had been nearly obliterated by the spilling of ink. It is not, we think, a material alteration, and does not, therefore, without proof of a fraudulent intent, vitiate the instrument, although made by the obligee. It is clear that neither spilled ink nor a successful attempt at retracing would constitute an alteration to avoid the instrument. It must therefore, be the failure to retrace correctly. This failure consists in the change of a single letter, ( i) to (a), and we are of opinion that does not so alter the sound as to make a different name. Pronouncing it with the ordinary accent, it will sound the same, whether it be written with a, e, or i. The name as changed, then, is not a material variance from the original. The change (60) does not alter the name to any other, neither does it vary the legal effects of the instrument nor the rights of the respective parties thereto. The instrument, therefore, is the same in substance, and there can be no good reason why it should be made void in the hands of the obligee. R. R. v. Bacon, 15 Pick., 239, was a case in which another payee was interpolated into a bill of exchange (the name being placed over the original payee and the latter left unobliterated). This was done by the holder without any fraudulent purpose, and it was held not to avoid the bill.
Wherever the alteration is a material one, a presumption of fraud arises, but it is, as we conceive, a rebuttable presumption; but where the alteration is not material, the instrument will not be affected thereby, unless it be shown the alteration was made with an intent to defraud. 2 Parsons Cont., 226 (notes); Adams v. Frye, 3 Metcalf, 103. Blackwell v. Lane, 20 N.C. 245, was where a person, with no fraudulent intent, had, without the direction or consent of two of the obligors, placed his name to a bond as an attesting witness. This was decided not to avoid the obligation as to the two; but whether it was on the ground that the alteration was immaterial or, if material, without fraudulent intent, does not distinctly appear.
The court below held the alteration stated upon the record to be such that if made by the obligee, or anyone who represented him, it would avoid the bond. In this, we think, there is error.
The other points in the case it is not necessary for us to notice. The disposition made of the principal one, upon which the others hand, disposes of them.
PER CURIAM. Venire de novo.
Cited: Norfleet v. Edwards, post, 457; Darwin v. Rippey, 63 N.C. 319; Wilson v. Derr, 69 N.C. 139; Long v. Mason, 84 N.C. 17; Wicker v. Jones, 159 N.C. 110, 116.
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