alteration

A change in the terms of a contract, made by the agreement of the parties thereto. An act done upon an instrument in writting by a party entitled under it, without the consent of the other party, by which its meaning or language is changed. The term is properly applied to the change in the language of instruments, and is not used of changes in the contract itself; and it i^ in strictness to be distinguished from the act of a stranger in changing the form or language of the instrument, which is called a "spoliation." This latter distinction is not always observed in practice, however. ALTERIUS CIRCUMVENTIO ALII NON praebet actionem. Dig. 50. 17. 49. A deception practiced upon one person does not give a cause of action to another.

A change in the terms of a contract or other written instrument by a party entitled under it, without the consent of the other party, by which its meaning or language is changed. The term is properly applied to the change in the language of instruments, and is not used of changes in the contract itself. And it is in strictness to be distinguished from the act of a stranger in changing the form or language of the instrument, which is called a spoliation. This Jatter distinction is not always observed in practice, however. Also sometimes applied to a change made in a written instrument, by agreement of the parties; but this use of the word is rather colloquial than technical. Such an alteration becomes a new agreement, superseding the original one; Leake, Cont. 430. An alteration avoids the instrument; 11 Coke 27; 5 C. B. 1S1; Lewis v. Payn, 8 Cow. (N. Y.) 71, 18 Am. Dec. 427; Wright v. Wright, 7 X. J. L. 175, 11 Am. Dec. 546; Weguer v. State, 28 Tex. App. U9, 13 S. W. G08; Palmer v. Poor, 121 Ind. 135, 22 X. E. 9S4, 6 L. K. A. 469; but not. it seems, if the alteration be not material: Lowers v. Jewell. 2 N. H. 543; Nichols v. Johnson. 10 Conn. L92; smith v. Crooker, 5 Mass. 540; Langdon v. Paul, 20 Vt. 217: Huntington v. Finch, 3 Ohio St. 4 15; Palmer v. Largeiit. 5 Neb. 22."., li.~i Am. Rep. 47'. >: Oliver v. llawley. 5 Neb. 139; Morrill v. Otis, L2 X. II. 466; King v. Lea. 13 Colo. 69, 21 I'ac. 1084; Harper v. Reaves, 132 Ala. 625, 32 Smith. 721 (a deed'; Warder, Bushnell «fc Glessner Co. v. Stewart. 2 Marv. (Del.) 275, 36 Atl. SS; Crowe v. Beem, 36 Ind. App. 207, 75 X. E. 302. The Bacon, 15 Pick. (Mass.) 239; Thornton v. Appleton, 29 Me. 29S. As to whether tearing and putting on a seal is material, see Powers v. Ware, 2 Pick. (Mass.) 451; Truett v. Wainwright, 4 Gilm. (111.) 411; 11 M. & W. 778. The question of materiality is one of law for the court; Martendale v. Follet, 1 N. H. 95; Brackett Ex'r v. Mountfort, 11 Me. 115; Wheelock v. Freeman, 13 Pick. (Mass.) 165, 23 Am. Dec. 674: Hill v. Calvin, 4 How. (Miss.) 231; Pritchard v. Smith, 77 Ga. 463; and depends upon the facts of each case; L. R. 1 Ex. D. 176. The principle seems to be that a party "is discharged from his liability, if the altered instrument, supposed to be genuine, would operate differently to the original instrument, whether it be or be not to his prejudice;" Anson, Contr. (2d Am. Ed.) *327; 5 E. & B. 89. For instances, see Schwarz v. Oppold, 74 N. Y. 307; Leonard v. Phillips, 39 Mich. 1S2, 33 Am. Rep. 370; Toomer v. Rutland, 57 Ala. 379, 29 Am. Rep. 722; Robinson v. State, 66 Ind. 331; Moore v. Hutchinson, 69 Mo. 429; Express Pub. Co. v. Aldine Press, 126 Pa. 347, 17 Atl. 60S; Warder v. Willyard, 46 Minn. 531, 49 N. W. 300, 24 Am. St. Rep. 250. Alteration of a deed will not defeat a vested estate or interest acquired under the deed; 11 M. & W. 800; 2 II. Bla. 259; Chessman v. Whittemore, 23 Pick. (Mass.) 231; Barrett v. Thorndike, 1 Greenl. (Me.) 73; Withers v. Atkinson, 1 Watts (Pa.) 236; Smith v. Mc Gowan, 3 Barb. (N. Y.) 404; see Bliss v. Mclntyre, 18 Vt. 466, 46 Am. Dec. 165; but as to an action upon covenants, has the same effect as alteration of an unsealed writing; 11 M. & W. S00; Chessman v. Whittemore, 23 Pick. (Mass.) 231; Waring v. Smyth, 2 Barb. Ch. (N. Y.) 119, 47 Am. Dec. 299. As to filling blanks, see Blank. The same rule as to alterations applies to negotiable promissory notes as to other instruments; Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 4 L. R. A. 19G, 12 Am. St. Rep. 754. The unauthorized insertion of "or bearer" in a note, if made innocently, will not make the note void; Croswell v. Labree, 81 Me. 44, 1G Atl. 331, 10 Am. St. Rep. 238; but the insertion of "or order" will avoid; Taylor v. Moore (Tex.) 20 S. W. 53. Where the alteration of a promissory note, though made by the holder, is prompted by honest motives, the instrument retains its legal validity and a bill in equity will lie to recover thereon; Wallace v. Tice, 32 Or. 283, 51 Pac. 733; the fraudulent detaching a stub containing conditions favorable to maker, from a note, avoids the note; Stephens v. Davis, 85 Tenn. 271, 2 S. W. 382. A spoliation by a third party without the knowledge or consent of a party to the instrument will not avoid an instrument even if material, if the original words can be re- 449; but the material alteration of an instrument by a stranger, while it is in the custody of the promisee, avoids his rights under it; 11 Coke 27 6; L. R. 10 Ex. 330; because one who "has the custody of an instrument made for his benefit, is bound to preserve It in its original state;" 13 M. & W. 352; 3 E. & B. 687; Leake, Cont. 425; but see Clapp v. Shephard, 23 Pick. (Mass.) 231. When a note was given by a corporation payable to its manager's wife for his salary, an alteration making it payable to the manager himself is material; Sneed v. Milling Co., 73 Fed. 925, 20 C. C. A. 230. Where there has been manifestly an alteration of a parol instrument, the party claiming under it is bound to explain the alteration; Wilde v. Armsby, 6 Cush. (Mass.) 314; Simpson v. Stackhouse, 9 Pa. 186, 49 Am. Dec. 554; Hills v. Barnes, 11 N. H. 395; Mc Micken v. Beauchamp, 2 La. 290; Warren v. Layton, 3 Har. (Del.) 404; Commercial & R. Bank of Vicksburg v. Lum, 7 How. (Miss.) 414; Tillou v. Ins. Co.,- 7 Barb. (N. Y.) 564; 6 C. & P. 273. As to the rule in case of deeds, see Co. Litt. 225 b; 1 Kebl. 22; 5 Eng. L. & Eq. 349; Den v. Farlee, 21 N. J. L. 280. Under the common law erasures and alterations of written instruments were presumed to have been made at the time of, or anterior to, their execution, the law presuming the honesty of purpose and action until the contrary is shown; Paramore v. Lindsey, 63 Mo. 66; Gooch v. Bryant, 13 Me. 3S6; Herrick v. Malin, 22 Wend. (N. Y.) 3S8; North River Meadow Co. v. Christ Church, 22 N. J. L. 424, 53 Am. Rep. 258. See Interlineation; Spoliation.

A making different; variation, or change. An act done upon a wi-itten instrument, whether by addition or by erasure, by which its meaning or its language is changed, — at present an act by the person entitled under the instrument

Variation; changing; making different, An act done upon a wrilten instrument, which, without destroying the identity of the document, introduces some change into its terms, meaning, language, or details. This may be done either by the mutual agreement of the parties concerned, or by a person interested under the writing without the consent, or without the knowledge, of the others. in either case it is properly denominated an alteration; but if performed by a mere stranger, it is more technically described as aspoliation or mutilation. The term is not properly applied toany change which involves the substitution of a practically new document. And it should in strictness be reserved for the designation of changes in form or language, and not used with reference to moditications in matters of substance. An alteration is an act done upon the instrument by which its meaning or language is changed. If what is written upon or erased from the instrument has no tendency to produce this result, or to mislead any person, it is not an alteration. 5 Neb. 444, An alteration is said to be material when it affects, or may possibly affect, the rights of the persons interested in the document. Alterius circumventio alii non prebet actionem. Thedeceiving of one person