Error to St. Louis Circuit Court.

This suit was brought to the September term, 1859, of the St. Louis Circuit Court, on a promissory note against Lorenzo P. Sanger, Jesse Arnot, and Anderson Arnot, by Joshua W. Owings.

The plaintiff, in his amended petition, stated that on the 14th day of May, 1859, the said Lorenzo P. Sanger made his certain promissory note, which note was by mistake dated St. Louis, May, 1858, the true intent and meaning being to date said note on the said 14th day of May, 1859, and the said Sanger thereby promised to pay, three months after date, to the order of said Jesse and Anderson Arnot, twenty-eight hundred and fifty-one dollars, for value received, negotiable and payable without defalcation or discount at the Mechanics’ Bank, with ten per cent, interest after maturity, which said note is on file with the original petition in said cause; that afterwards, and on the 14th day of May, 1859, the said Jesse and Anderson Arnot, well knowing that on said day the said Sanger had so, as aforesaid, executed said note assigned by endorsement, and delivered said note to said plaintiff, who thereby became and still remains the legal owner of the same; that on the 17th day of August, 1859, the day upon which said note became due and payable, he, said plaintiff, discovered the mistake in the date of said note, and the plaintiff thereupon, for the purpose of correcting the said mistake, and in furtherance of the original intention of the parties to said note, wrote the figure “ nine” over the figure eight in the date of said note; that on the 17th day of August, 1859, the said note was presented at the Mechanics’ Bank and payment thereof demanded, which was refused, and thereupon said note was on said day duly protested for nonpayment, and said Jesse and Anderson Arnot were immediately notified of said presentment, demand, refusal to pay, and protest; that said note remained wholly unpaid, and asked for judgment. The suit was dismissed as to Lorenzo P. Sanger. Jesse and Anderson Arnot demurred to the said amended petition.

The court below sustained said demurrer, and rendered a final judgment upon the same.

The facts disclosed in the petition do not, in the law, constitute an alteration. An alteration in an instrument is such a change in it as does violence to the intention of the parties, so that it is not the instrument they made or intended to make. A change which simply conforms to or carries the original intention of the parties cannot be in violation of their intention, and consequently cannot be what is meant by an alteration in the law.

A bill having been dated by mistake 1822 instead of 1823, the agent of the drawer and acceptor, to whom it had been given to be delivered to the endorsee, without their knowledge or consent corrected the mistake. Held, such alteration did not vacate the bill. (Brutt v. Picard, Ey. & M. 37.)

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