This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
(3) A change in the language of a written instrument by one not a party thereto and not acting with authority of a party thereto constitutes spoliation. It must be considered separately from alteration. Since the distinction between alteration and spoliation turns on the relation to the contract borne by the party who makes the change in the instrument, it is in this correction all important to determine this relation. Change in a written contract may be made by (1) a party to the contract, (2) an agent of a party to the contract, (3) a person not an agent bat in whose custody a contract has been placed, or (4) a person having no relation to the contract. If the change is 'made by a party to the contract it is a case of alteration.1 If the change is made by an agent of a party to the contract the question whether this is an alteration or a spoliation as far as the principal's rights are concerned turns on the question of the agent's authority. If the agent is one having no authority which could include the making of such change, he is for this purpose a stranger to the contract, and the change is a spoliation if not ratified by the principal.2 So an unauthorized change as to the place of payment of a note, made by payee's clerk and subsequently erased, leaving the note as originally written, does not avoid it.3 Accordingly, the removal of a memorandum ■written by an unauthorized agent extending the time of payment eight months, is an immaterial alteration.4 So an authorized alteration by the agent of the maker does not avoid the note,5 or contract.6 On the other hand a change in a written contract made by an agent within whose general authority the power to make such change is included, is in legal effect an alteration made by the principal.7 A change in the language of a written contract made by one in whose custody a contract is placed but who is not the agent of either party, is a spoliation. Thus if a public bond is placed in the custody of a public officer, a change therein made by him is a spoliation.8 Alteration of a note by a justice of the peace with whom it has been left for collection, does not destroy its validity where the payee disavows such alteration as soon as he learns of it.9 The cases can be explained on the theory that the depository, even if in one sense the agent of one of the parties to the instrument, had no authority to make such alteration. Accordingly, any act done by him within his general authority which effects a change in the language of the written instrument is an alteration. A change made by an administrator in a note payable to himself in that capacity is an alteration, and not a spoliation.10 So a public official authorized to approve a bond, who changes it after execution at the time that he approves it, commits an alteration, and not a spoliation.11 A change made by a mere stranger to the contract, who has no relation thereto, ia a spoliation.12
5 Kane v. Herman, 109 Wis. 33; 35 N. W. 140.
6 See Sec. 1520, 1543. 1 See Sec. 1518 et seq.
2 Forbes v. Taylor, 139 Ala. 286; 35 So. 855; Aetna National Bank v. Winchester, 43 Conn. 391; Ballard v. Ins. Co.. 81 Ind. 239; Brooks v. Allen, 62 Ind. 401; Kingan v. Silvers, 13 Ind. App. 80; 37 N. E. 413; Nickerson v. Swett, 135 Mass. 514;
White Sewing Machine Co. v. Da-kin, 86 Mich. 581; 13 L. R. A. 313; 49 N. W. 583; Lubbering v. Kohl-breeher, 22 Mo. 596; Hunt v. Gray, 35 N. J. L. 227; 10 Am. Rep. 232; Gleason v. Hamilton, 138 N. Y. 353; 21 L. R. A. 210; 34 N. E. 283; Rees v. Overbaugh, 6 Cow. (N. Y.) 746; Robertson v. Hay, 91 Pa. St. 242; Port Huron, etc., Co. v. Sherman, 14 S. D. 461; 85 N. W. 1008;
Deering Harvester Co. v. White, 110 Tenn. 132; 72 S. W. 962; Bigelow v. Stilphen, 35 Vt. 521; Jesup v. City Bank, 14 Wis. 331.
3 Acme Harvester Co. v. Butter-field, 12 S. D. 91; 80 N. W. 170.
4 Mater v. Bank. 8 Colo. App. 325; 46 Pac. 221.
5 Walsh v. Hunt, 120 Cal. 46; 39 L. R. A. 697; 52 Pae. 115.
6 Young v. Wright, 4 Wis. 144: 65 Am. Dec. 303.
7 Hol lings worth v. Holbrook. 80 la. 151; 20 Am. St. Rep. 411; 45 N. W. 561; Gettysburg National Bank v. Chisolm, 169 Pa. St. 504: 47 Am. St. Rep. 929; 32 Atl. 730.
8 State v. Berg. 50 Ind. 496.
9 Hays v. Odom, 79 Mo. App. 425.
10 McMurtrey v. Sparks, 71 Mo. App. 126.
11 State v. McGonigle. 101 Mo. 353: 20 Am. St. Rep. 609; 8 L. R. A. 735; 13 S. W. 758.