imously declared a letter to the drawer promising to accept the bill, which was shown to the person who held it, and took it on the credit of that to be a virtual acceptance. It is true, in the case of Clarke v. Cock, the bill was made before the promise was given, and the judges, in their opinions, use some expressions which indicate a distinction between bills drawn before and after the date of promise; but no case had been decided on this distinction; and in Pillans & Rose v. Van Mierop & Hopkins, the letter was written before the bill was drawn.

The court can perceive no substantial reason for this distinction. The prevailing inducement for considering a promise to accept, as an acceptance, is that credit is thereby given to the bill. Now, this credit is given as entirely by a letter written before the date of the bill as by one written afterwards.

It is of much importance to merchants that this question should be at rest. Upon a review of the cases which are reported, this court is of opinion, that a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who afterwards takes the bill on the credit of the letter, a verbal acceptance binding the person who makes the promise. This is such a case. There is, therefore, no error in the judgment of the Circuit Court, and it is affirmed with

costs.

Judgment affirmed.

NECESSITY OF ENDORSEMENT

HULL V. CONOVER

35 Ind. 372 (1871)

DOWNEY, C. J. This suit was commenced by William Conover against the appellant, before a justice of the peace, where there was judgment for the defendant. The plaintiff appealed to the Circuit Court, where the death of William Conover was suggested, and his executors made parties plaintiffs in his stead. There was judgment in the Circuit Court for the plaintiffs, from which the defendant appealed to this Court.

The first point presented to us is, that the cause of action is insufficient. It consists of the following note.

"150.00

Covington, June 15, 1868.

"Eighteen months after date I promise to pay to the order of Hiram Abdill one hundred and fifty dollars, value received, without any relief from valuation or appraisement laws. Interest from date six per cent. DANIEL HULL."

There is no indorsement on the note by Abdill to William Conover, or to the appellees, and there is, therefore, nothing to show any right in him or them to maintain the action. See Well v. Trotter, 4 Blackf. 12; Vandagrift v. Tate, Id. 174; Hamilton v. Ewing, 6 Blackf. 88; McDonalds' Treat. 68, 69. This is not a mere defect of parties.

The judgment is reversed, with costs, and the cause remanded.

WHERE THE RATE OF INTEREST IN A NOTE WAS CHANGED FROM SIX TO SEVEN PER CENT WITHOUT THE CONSENT OF THE SURETY, THE SURETY IS RELIEVED FROM LIABILITY

HARSH, ET AL. V. KLEPPER

28 Ohio St. 200 (1876)

WRIGHT, J. This was an action upon a promissory note, dated April 15, 1865, at one year, which Harsh had signed as surety for the other makers, John H. Tressell and L. R. Tressell.

The defense of Harsh was: First, that after he had signed the note and it had been delivered, it was altered in this, that the rate of interest was changed from six to seven per cent. It was claimed and the jury found that the alteration was made by John H. Tressell, one of the principal makers, with the consent cr by the direction of plaintiff, without intent to injure or defraud Harsh, but without his knowledge or consent. It is claimed that this is a material alteration, and such as discharges Harsh, the surety.

There was a further defense, to the effect that, after the note became due, the plaintiff agreed with the principals to extend the time of payment for two years, without the knowledge or consent of the surety, and therefore he claims to be discharged.

As the decision does not rest upon this second defense, it is merely mentioned without further discussion.

The issue upon the first defense, of material alteration, having been made, evidence was given tending to show that fact. Whereupon said Philip Harsh asked the Court to charge the jury that if they should find that said note had been altered as above stated by changing the rate per cent from six to seven, at the request of the said plaintiff, and without the knowledge or consent of said surety that then the said surety was released from his liability on said note.

This instruction the Court refused, but the Court did charge the jury that "the alteration of the note sued on, at the time of or soon after its maturity, by and at the original suggestion of John H. Tressell, one

of the makers and principals thereof, by erasing the word 'six' in said. note as originally written, and writing in its stead the word 'seven,' so as to make the note read 'seven per cent interest from date,' instead of 'six per cent interest from date,' although such alteration was made in the presence of and with the consent and by the direction of the said plaintiff, payee and owner of said note, and without the knowledge or consent of said surety, Harsh, would not prevent the plaintiff from recovery on said note against said surety, Harsh, unless the plaintiff at the time of giving such consent and direction, in fact, designed and intended thereby to injure and defraud the said Harsh. If such consent or direction to make such alteration was given by said plaintiff, and he at the time, in fact, intended thereby to injure and defraud the said Harsh, you should find a verdict for the said Harsh.

The question then is, is a change in the rate of interest, made by the principals with the consent of the holder and owner, but without the knowledge or consent of the surety, a material alteration and such as will avoid the note, as against the surety, though no fraudulent intent in such alteration appear.

The question appears to be well settled upon authority.

In the case of Wallace & Park v. Jewell, 21 Ohio St. 163, the name of another person as maker was added to the note after its delivery, and this was held to be such a material alteration as to vitiate the paper against the other makers. Says White, J. (p. 174), "Such an addition gives a different legal character to the instrument. The defendants might, by the altered condition of the note now in question, have been subjected to change of jurisdiction in the event of any litigation arising in relation to it between the parties."

In the case of Boalt v. Brown, 13 Ohio St. 364, the note promised to pay $500 "in ten days' notice, at ten per cent.;" the words added were "with interest annually." It was held that this was a material alteration and discharged a surety. This addition gave the payee the right to collect interest annually, while without it, interest could only have been collected with the principal, and neither without ten days' notice.

In this case it is held that the intent with which the alteration is made cannot vary the result; the contract is not the contract which the surety signed; the terms of the altered note were never assented to by him, and he is not therefore bound. In Patterson v. McNeely's Adm'rs, 16 Ohio St. 348, the note had this clause: "The above to be at ten per cent. interest annually." The alteration consisted in inserting the word "paid" before "annually," so as to make the note read "ten per cent. paid annually." This was held to be a material alteration which discharged the surety. The added word required that the interest should

be paid at the end of each year, and if not so paid, interest might be computed upon the interest, which could not be done as the note stood originally. The note therefore was not the note the surety had signed.

In the case of Brown v. Jones, 3 Porter (Ala.) 429, the words added were "with interest from the date." This was held to be a material alteration. In this case the defendant was the maker of the note, and his plea was held good. In Boalt v. Brown, 13 Ohio St. 364, and Patterson v. McNeely, 16 Ohio St. 348, the defendants were sureties seeking to defend themselves. In Warrington v. Early, 2 El. & Bl. 763, a note was made payable "with lawful interest;" subsequently, without the assent of the maker, there was added in the corner of the note "interest at six per cent. per annum." Held to be a material alteration and no recovery could be had against the maker.

In Waterman v. Vose, 43 Me. 504, the words "with interest" were added. Defendant was an accommodation indorser, and the addition was held to discharge him. The Court below had said that if the addition was made without fraud, the defendant would not be discharged. This ruling however, was reversed, by the Supreme Court of Maine stating the grounds of the doctrine to be two-fold. The first, that of public policy, to prevent fraud, by not permitting a man to take the chance of committing a fraud without the risk of losing, if detected. The other to insure the identity of the instrument, and prevent the substitution of another, without consent of the party concerned. This is the ground assumed by Mr. Greenleaf, 1 Greenl. Ev., # 565. The Court says: "In this case the defendant asumed a liability for the sum of $260 at the end of seven months, and no other. The alteration made the note for a larger sum at the same time."

In McGrath v. Clark, 56 N. Y. 34, defendant indorsed a promissory note with the time and place of payment in blank, and delivered the same to the maker, who filled the blanks, and added the words "with interest." It was held, that though the maker was authorized to fill the blanks as to time and place of payment, yet he was not authorized to add the words "with interest," and it was such a material alteration which discharged the indorser. The Court says that the maker had no more right to add the words "with interest," than to increase the amount of the note. That was already fixed at so many dollars, and adding interest would necessarily increase such amount.

In Dewey v. Reed, 40 Barb. 16, the note was already drawn "with interest," but afterward this was added, "interest to be paid semiannually" This was such a material alteration as invalidated the note against a surety.

In Fay v. Smith, 1 Allen, 477, it is held that the alteration of a note

by the addition of the words "with interest" avoids the note as to such promissors as do not consent thereto, although the alteration is made without fraudulent intent. In its opinion the Court says: "There seems to be no difference in principle between this case and one where a note should be signed by two persons for the sum of $300, and one of them, supposing he had authority from the other, but really without his consent, should strike out the words 'three hundred dollars,' and insert in their place 'five hundred dollars,' and then negotiate the note. The other signer would be wholly discharged, not on the ground of fraud or forgery, but of want of authority to bind him. The note used, he did not execute; the note which he executed was never used but was destroyed by the alteration and another substituted for it."

In Lee v. Staboid, 55 Me. 491, the note was "on demand and interest," and the words, "at nine per cent." were inserted, and rendered the note void.

Two cases in 33 Missouri held that the addition of the words "bearing ten per cent. interest," avoids the note: Ivory v. Campbell, 33 Mo. 398; Presbury v. Michael, 33 Mo. 542.

In Hart v. Clouser, 30 Ind. 210, the addition of a clause fixing the rate of interest was held to avoid the note as to a surety.

These authorities, and others that might be cited, clearly establish the proposition that such an alteration as that alleged in this case is material, and operated to discharge the surety, entirely independent of any question of intent. The alteration from six to seven per cent. was an alteration in terms, but did not change the legal effect of the note. Under the interest laws of the State, no more than six per cent. could be recovered. A contract, therefore, for seven per cent, was void, and a specification of that rate in the note was altogether nugatory, and did not vary the import of the paper.

The contract is certainly changed in words, though perhaps the law will not enforce it as to the usurious part of the interest. It is rather a case of defective remedy. The interest law says that parties shall be entitled to receive interest at the rate of six per cent. per annum, and no more: 1 S. & C. 742. Of course, that means they shall receive no more at the hands of the law. But parties are not prevented from making contracts for higher rates of interest and keeping them, if they choose so to do, though the law may not compel them. As is said in Rains v. Scott, they are contracts "which the parties were not forbidden to make." Under the statute of frauds there are certain parol contracts upon which an action cannot be maintained, yet the contracts are not absolutely void: Mims v. Mims, 15 Ohio, 671; Woods v. Dille, 11 Ohio, 455. But if it be that the contract for seven per cent. is illegal, and therefore the