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Statement of case.
Pepoon v. Stagg & Co., 1 Nott & McCord, 102; Haynes v. Dennett, 11 N. H., 181; Atkinson v. Marks, 1 Cow., 694, 707; Edwards on B. & Notes, 142, 143.) The alteration of the instrument made it negotiable when it was not so made by the maker, and such alteration destroys the note. (2 Parsons on Bills & N., 562; Pepoon v. Stagg & Co., 1 Nott & McCord, 102; Haynes v. Dennett, 11 N. H., 181; Bruce v. Wescott, 3 Barb., 374; Scott v. Walker, Dudley (Ga.], 243; Johnson v. Bank, 2 B. Mon., 350.) Cutting the memorandum from the instrument, rendered the part held by the plaintiffs absolutely void as against the maker. (Chitty on Bills, 10th Am., from 9th London ed., 182; Wheelock v. Freeman, 13 Pick., 165; Johnson v. Heagan, 10 Shep., 329; Wade v. Withington, 1 Allen (Mass.] R., 561; Fay v. Smith, id., 477; Bruce v. Wescott, 3 Barb., 374; 2 Parsons on Bills & N., 545, 546, 562, 580, 581, 582; Dewey v. Reed, 40 Barb., 16; Nazro v Fuller, 24 Wend., 374; Woodworth v. Bank of America, 19 John., 391; Chappell v. Spencer, 23 Barb., 584, and cases there cited; Burchfield v. Moore, 25 Eng. Law & Eq. Rep., 123; Warrington v. Early, 2 Ellis & B., 763; Master v. Miller, 4 Term R., 330; S. C., 1 Smith's Leading Cases, 5th Am. ed., 934, and notes thereto; Stephens v. Graham, 7 S. & R., 505; Jardin v. Paine, 1 Barn. & Adolph, 671 ; Waring v. Smith, 2 Barb. Ch. R., 119; Wait v. Pomeroy, 20 Michigan R., 425; Wharton's Am. Crim. Law, $ 1421; Roscoe's Crim. Ev., 5th Am. ed., 513.) After the alteration of the note, it is not the contract made by the party, and the law will not compel him to perform a contract he never made. (2 Parsons on Bills and Notes, 581; Fay v. Smith, 1 Allen (Mass.] R., 477 ; Wade v. Withington, id., 561; Cock v. Coxwell, 2 Cromp., Mees. & Roscoe, 291; Master v. Miller, 4 Term R., 320; S. C., Smith's Lead. Cases, 5th Am. ed., 934, et seq. ; Chappel v. Spencer, 23 Barb., 584, 590; Bathe v. Taylor, 15 East, 412; Wait v. Pomeroy, 20 Mich., 425; Wharton's Am. Criminal L., $ 1421; Roscoe's Crim. Ev., 5th Am. ed., 513.) The plaintiffs cannot recover upon that part of the instrument held by them,
Opinion of the Court, per ALLEN, J.
although they purchased it without notice of the addition, and for value. (Wade v. Withington, 1 Allen [Mass.] R., 561; Wait v. Pomeroy, 20 Mich. R., 425; Burchfield v. Moore, 25 Eng. Law and Eq. Rep., 123; Bruce v. Wescott, 3 Barb., 374; Master v. Miller, 4 Term. R., 330; S. C., 1 H. Black. R., 140; S. C., 1 Smith's Lead. Cases, 5th Am. ed., 934, et seq.; Stephens v. Graham, 7 S. & R., 505; Nazro v. Fuller, 24 Wend., 374; Chitty on Bills, 10th Am. from 9th London ed., 181, 182; Agawam Bank v. Sears, 4 Gray, 95;
Parsons on Bills and N., 551, 580, 581; Whitney v. Snyder, 2 Lansing's R., 477; Foster v. McKinnon, 38 Law Jour. R. [N. S.), 310; Nance v. Lary, 5 Ala., 370.) The court was right in holding that the intent of the parties as to the memorandum was a question of fact for the jury. (2 Pars. on Cont., 3d ed., 287; Nazro v. Fuller, 24 Wend., 374, 376; Johnson v. Dodgson, 2 M. & W., 653; Van Schaick v. Third Av. R. R. Co., 38 N. Y., 346, 352; Ireland v. Oswego, Hannibal S. Plank R. Co., 3 Kern., 526, 533.) Even if the court erred in submitting this question to the jury, it could in no way prejudice plaintiffs. (People v. Bransby, 32 N. Y., 525; Marckley v. Shults, 29 id., 346; People v. Wiley, 3 Hill, 194, 213; Vallance v. King, 3 Barb., 548.) No new question, to which the attention of the judge was not called, can now be raised; and the charge will be presumed to have been correct in reference thereto. (O'Neil v. James, 43 N. Y., 84; Winchell v. Hicks, 18 N. Y., 558; Barnes v. Perine, 2 Kern., 18, 22; Mallory v. Tioga R. R. Co., 5 Abb. [N. S.), 420; Seymour v. Conway, 1 Keyes, 532; Jencks v. Smith, 1 Comst., 92; Buck v. Remsen, 34 N. Y., 383.) The plaintiffs were bound to account for the alteration. (2 Pars. B. & N., 575–579; Master v. Miller, 4 Term. R., 330.)
ALLEN, J. Unless concluded by the decisions of the courts of this State to the contrary, we shall be constrained by authority, as well as in the application of well established principles, to regard the memorandum at the foot of the note
Opinion of the Court, per ALLEN, J.
as a substantive part of the note itself, and with the note constituting a single contract. The evidence clearly establishes, and the jury have found that the memorandum was written at the foot of the note before the signature was made, and was on the note at the time of its delivery to the payees, and was in conformity with the understanding of the parties, the note as modified by the memorandum embodying the agree. ment of the maker with the payees. The reason why the signature of the defendant was above instead of below the memorandum is given, and the clear intention was that the memorandum should be read as a part of the note. The meaning of an agreement is to be sought in all the words contained within the four corners of the instrument, and the order of the words, and the place they occupy in the paper, is not essential so long as they are placed therein, to evidence the actual agreement of the parties, and as a part of the contract. The rule goes further, and requires all papers and instruments relating to the same subject and executed simultaneously, to be read together, and as constituting, when thus read, a single contract or agreement. But when, as in this case, the contract or promise is unilateral, and the body of the contract fails for any reason to express the agreement, and a memorandum is made upon the same paper, either upon the margin or at the foot, above or below the signature of the promisor, or indorsed upon the back, and delivered with and as a part of the contract or promise, the whole instrument constitutes but a single contract, and the memorandum is as much a part of it, as if written in the body. Words written in the margin of an award by the arbitrators in a distinct sentence are to be considered as a part of the award, and to receive the same construction as if inserted in the body of it. (Platt v. Smith, 14 J. R., 368.) Where an obligor signed his name and affixed his seal in the space between the penal part of the bond and the condition thereof, the latter is as much a part of the instrument as if the signature was at the foot of it. (Reed v. Drake, 7 Wend. R., 345.) The prin
Opinion of the Court, per ALLEN, J.
ciple has been repeatedly applied to promissory notes and instruments of a like character.
In Hartley v. Wilkinson (4 M. and S., 25), a promissory note negotiable and for the payment of a sum of money absolutely on its face, was modified, and lost its negotiable character by an indorsement thereon, declaring that it was not to be paid upon the happening of a certain contingency. The memorandum operated to convert what would otherwise have been a negotiable promissory note, into a special contract, for the payment of money contingently. The same effect was given to an indorsement upon a promissory note in Cholmeley v. Darley (14 M. & W., 343, and in Leeds v. Lancashire, 2 Camp., 205.) It is in all cases a question to be determined upon the circumstances whether a memorandum or indorsement upon a note or bill is intended as a part of the contract and a modification of the note or bill, or whether it is merely an ear-mark for the purpose of identification, and when the latter is the character and purpose, it will not modify or affect the contract, as it is no part of it. (Brill v. Crick, 1 M. & W., 232; Sanders v. Bacon, 8 J. R., 485.) Many, if not most, of the decisions in England have been rendered upon technical questions growing out of the stamp acts and the forms of pleading, but still are significant as to the character and effect of a memorandum at the foot of or indorsed upon a promissory note prior to, or simultaneously with the signing by the maker, and before a delivery to the payee, and with intent to declare the extent and terms of the liability assumed, or intended to be assumed. In some cases it is said that the naming of a place of payınent in the corner, does not make that a part of the contract, but it is not on the principle that because the writing is in the corner, it therefore cannot form a part of the contract, but because what is there written was regarded by the courts, by reason of the mercantile usage, a mere memorandum for the convenience of parties. (Per Lord CAMPBELL, C. J., in Warrington v. Early, 2 E. & B., 763.) The effect of such memorandum is now regulated by statute in England. (1 and 2 G. 4 C., 78.) In Warrington
Opinion of the Court, per ALLEN, J.
v. Early (supra), the note was payable on its face, “with lawful interest.” At the time of delivery by two of the makers in the absence of the third, in explanation of the words "lawful interest" in the body of the note, the words “interest at six per cent per annum
were noted at the left hand corner of the note, and it was held to be an alteration of the contract as fatal to the validity of the note, as if it had been inserted in the body. In Massachusetts the decisions are uniform, and to the effect that any memorandum underwritten or in the margin or indorsed upon a note, constitutes an essential part of the contract, when such is the intent of the parties. (Springfield Bank v. Merrick, 14 Mass., 322; Coolidge v. Ingler, 13 id., 26; Jones v. Fales, 4 id., 245; Shaw v. First Meth. Soc., etc., 8 Met., 223; Barnard v. Cushing, 4 id., 230; Makepeace v. Harvard College, 10 Pick., 298; Heywood v. Perrin, id., 228.) The rule is the same in other States. Fletcher v. Blodgett, 16 Vermont, 26; Johnson v. Fleagan, 23 Maine, 329; Henry v. Coleman, 5 Vermont, 403.
If the modification or qualification of the terms of the note, is by any independent promise or agreement of the payee or promisee, it will not vary the effect or character of the note, but the maker of the note will be left to such remedy as the law will afford him upon the independent promise of the payee, either as a defence to the note in the hands of the payee, or one receiving it with notice of the equities or against the promisor personally. (Odiorne v. Sargent, 6 N. H., 401; Dow v. Tuttle, 4 Mass., 414.) It has been supposed that a different rule prevails in this State. The question was considered in Bank of America v. Woodworth (18 J. R., 315; S. C. in error, 19 id., 391.) The defendant was sued as an accommodation indorser of one Kain upon a note in which at the time of the indorsement there was no place of payment designated. The maker had at the time of negotiating the note, and without the knowledge or assent of the indorser, written in the margin “Payable at the Bank of America.” This case has been frequently cited as a decision by the Court for the Correction of Errors, that this memorandum in the