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Opinion of the Court, per ALLEN, J. margin was a part of the note, and a material alteration of its terms, the same as if the same words had been inserted in the body. (7 Cow., 338, note; 19 N. Y., 480; Edwards on Bills, 166.) This view was taken by Senator Skinner, who delivered the prevailing opinion in the court of last resort, with whom seventeen senators concurred against the opinion of the chancellor and nine senators. But it is possible that those who voted with Senator Skinner did so upon the other ground suggested in his opinion, that if such memorandum was not an alteration of the note, then the indorser was discharged for the want of a proper demand of payment from the maker. We have the able opinion of Senator Skinner, that a note or memorandum made by the maker in the margin of a note before the delivery thereof, is a substantive part of the note itself as if inserted in the body, and the statement of the reporter that the majority of the members of the court concurred, without any intimation that they did not concur in the entire opinion, in connection with the fact that there was another ground stated in the same opinion leading to the same result. In Sanders v. Bacon (8 J. R., 485), the indorsement upon the note simply stated the consideration, and was held not to be, or to have been intended as a part of the con. tract. The court said the effect of it was only to show the consideration and to operate as a notice to any person who might purchase the note. The question presented here was not made in that case. No objection was raised on account of the consideration, and the only question was whether the instrument could be counted on as a promissory note. The only other case that need be referred to is Tappan v. Ely (15 W. R., 362), in which the question arose upon demurrer to a replication. The plaintiffs counted as indorsers against the maker of two promissory notes payable to W. W. Edwards & Co., or order, the one in six months and the other in twelve months after date. There was a memorandum indorsed on the notes to the effect that they were delivered to the payees by one A. H. E. as security for accepting for him to the amount of the notes, and if A. H. E. should pay the money

Opinion of the Court, per ALLEN, J.

arising from certain funds to the discharge of the notes made by the defendant, the notes were to be void. Plea, that A. H. E. did pay and satisfy to W. W. Edwards & Co. the amount for which they had accepted for him, and that the notes were transferred to the plaintiffs after they became due. Replication that A. H. E. did not pay and satisfy W. W. Edwards & Co. the amount for which they had accepted for him in modo et forma, and demurrer to the replication. The court repeat what was said in Sanders v. Bacon (supra,) as to the effect of the indorsement then under consideration, and say, "if this court was correct in saying that the indorsement is no part of the note itself, then the demurrer cannot be sus tained, for the note on its face is perfect.” They then merely add, that no injury can accrue to the defendant, as he could make any defence which he could if the suit was brought in the name of the payee. No substantial rights depended on the question as presented, which was simply as to the name in which the action should be brought. The court evidently gave but slight consideration as to the effect of a memorandum or indorsement upon a note essentially modifying the terms of the contract and affecting the legal rights of the parties upon the note itself. The question as made was very technical, and was disposed of as such, and with a view to substantial justice.

I doubt if the two cases last referred to can properly be regarded as the deliberate adjudications of the Supreme Court of this State, in hostility to the well considered cases in the courts of England and in the United States, and in disregard of the rule which is applied in this State as well as else where to the interpretation of other contracts. It is true they have been regarded as holding doctrines adverse to those held by the English courts and the courts of Massachusetts and other States, but I am persuaded that undue effect has been given to them. The cases were properly disposed of, and in the case first decided, and upon which as authority the last was disposed of, the indorsement was precisely what it was declared by the court to be, a statement of the considera

Opinion of the Court, per ALLEN, J.

tion, and did not purport to qualify the undertaking of the maker of the note. Tappan v. Ely was distinguishable from Sanders v. Bacon, but no effort was made to distinguish it; on the contrary, it was assumed that the latter case was in conflict with the current of authority in England and elsewhere. In Bull v. Crick (1 M. & W., 232), an indorsement not unlike that in Tappan v. Ely, was held not to be a part of the contract, but simply a marking of the note for identification, which was clearly the purpose of the indorsement in Sanders v. Bacon, and might well have been considered the purpose in Tappan v. Ely, and so regarded, the case was within the authority of Sanders v. Bacon, but is not in conflict with the long line of decisions in which it is held that where the

purpose

and intent of an indorsement or memorandum is to qualify the note and the undertakiug of the maker, it is to be regarded as a part of the contract. Bull v. Cricke is not regarded as overruling or casting a doubt upon the authority of the cases so holding, or as in conflict with them, but it stands on the same principle as the cases cited above from the courts of this State.

It is desirable for many reasons that the decisions of the several States upon questions affecting commercial paper should be uniform, and unless we are shut up to a different judgment by the adjudications in our own courts, we should apply the rule well established by authority elsewhere, and sustained by the rules governing analogous cases, that a memorandum upon a note made cotemporaneously with the note, and delivered with it, and intended by the parties as a part of the contract, and to give effect to their actual agreement, is a part of the note and qualifies it the same as if inserted in the body of the instrument. This question has not been authoritatively and deliberately decided otherwise in this State.

It follows, then, that the memorandum at the foot of the note in suit was an essential part of the note, and the severance of it from the note without the consent of the defendant, was the alteration of the note in a material point, and destroyed

Statement of case.

the note even in the hands of an innocent indorsee. (Johnson v. Keagan, 23 Maine, 329; Nazro v. Fuller, 24 W. R., 374; Dewey v. Reed, 40 Barb., 16; Burchfield, v. Moore 3 E. & B., 683; Simpson v. Stackhouse, 9 Barr. Penn. St. R., 186; Wheelock v. Freeman, 13 Pick., 165; Warrington v. Early, supra.) The question whether the defendant by his act, negligent or otherwise, enabled the payee to commit the forgery and perpetrate a fraud upon an innocent purchaser of the note, and if so, as to the effect of such negligence or any want of proper care upon his liability upon the note as altered by the severance of the memorandum, was not raised at the trial, and cannot therefore be made upon this appeal. The only questions at the trial were those now disposed of, to wit: whether the memorandum was a part of the note, and the legal effect of its destruction without the assent of the maker.

The judgment should be affirmed.
CHURCH, Ch. J., absent; all the other judges concurred.

ELIZA CHAPIN, Respondent, v. DANIEL SHAFER et al.,

Appellants.

A mortgage of personal property executed by an infant is voidable at his

election at any time before he arrives of age and within a reasonable time thereafter, and is avoided by any act which evinces that purpose. An unconditional sale and delivery of the property to a third person is

such an act. One C., an infant, executed a chattel mortgage upon his horse to defend

ants to secure a prior indebtedness. Upon the same day he sold and delivered the horse to plaintiff, and refused to deliver it on defendants' mortgage. After the mortgage became due defendants took the horse from plaintiff's possession; shortly after C. became of age, and then ratified the bill of sale to plaintiff by indorsement thereon. In an action to recover possession of the borse, held, that defendants were trespassers in taking the horse, and plaintiff was entitled to recover.

(Submitted May 2d, 1872; decided May 21st, 1872.)

Statement of case.

APPEAL from order of the General Term of the Supreme Court in the fourth judicial department, reversing a judgment in favor of defendants entered upon the report of a referee and directing a new trial.

The action was brought to recover possession of a horse. Defendants denied plaintiff's title and claimed title in themselves. The facts are set forth in the opinion.

Metcalf & Field for the appellants. As the order appealed from does not show that the judgment was reversed on questions of fact, the case presents nothing but questions of law. (Code, $ 268, sub. 4, and $ 272; Colwell v. Lawrence, 38 N. Y., 71; Baldwin v. Van Dusen, 37 id., 487; Shibley v. Angle, id., 626, 631 ; McMahon v. Allen, 32 How., 313; Barlow v. Scott, 24 N. Y., 40; Phelps v. McDonald, 26 id., 84.) A chattel mortgage vests title in the mortgagee, subject to being defeated by performance. (Butler v. Miller, 1 N. Y., 500; Mattison v. Bancus, id., 295; Hill v. Beebee, 13 id., 556, 565; Chadwick v. Lamb, 29 Barb., 518; Olcott v. Tioga R. R. Co., 40 id., 179; Stoddard v. Dennison, 2 Sweeney, 54.) The fact that mortgagor was an infant, does not change the character of the instrument. (State v. Plaisted, 43 N. H., 413; Ottman v. Moak, 3 Sand. Ch., 431; Heath v. West, 8 Foster, 101.) The mortgage being under seal, title passed without manual delivery of the property. (Bool v. Mix, 17 Wend., 119; Roof v. Stafford, 7 Cow., 180; 9 id., 626; Zouch v. Parsons, 3 Burr., 1794; Breckenridge v. Ormsby, 1 J. J. Marsh, 236.) The mortgage was not void, but at most only voidable. (See cases cited above, and Eagle Fire Co. v. Lent, 6 Paige, 635; Gillett v. Stanley, 1 Hill, 121; Dominick v. Michael, 4 Sand. S. C. R., 418; Van Nostrand v. Wright, Hill & Denio, 260; Kendall v. Lawrence, 22 Pick., 540; Moore v. Abanathy, 7 Blackf., 442; Johnson v. Rockwell, 12 Ind., 76; Wallace v. Lewis, 4 Harring., 76; Jenkins v. Jenkins, 12 Iowa, 176; Wheaton v. East, 5 Yerg., 41; Vaughn v. Parr, 20 Ark., 600.) The bill of sale to plaintiff did not operate as a disaffirmance of the mortgage.

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