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.
To constitute alteration the contract must be so changed as to express an intention different from the real agreement of the parties. The effect of alteration of a contract containing mistake in expression by which alteration such contract is made to conform to the real agreement of the parties, presents some questions for consideration. If the parties agree to such informal reformation there is no question as to its validity.1 If the parties have not agreed to such correction, the right of one party to constitute himself chancellor and to decree reformation in an ex parte proceeding on his own evidence, without notice to the adversary party, and to execute his decree forthwith is more questionable. It has been held, however, that as between the parties to the contract who knew of the mistake, such alteration does not avoid the contract.2 So an instrument is not avoided in equity by such alteration.3 Thus an alteration in the rate of interest, as a change from eight per cent as printed to seven and a half per cent as the parties had agreed upon,* or a change in words importing liability, as a change from words importing individual liability to words importing corporate liability incurred through the individuals signing the notes as agents for the corporation, to conform to the real intention of the parties,5 a change in the name of the payee,6 or a change in the date,7 do not avoid the contract if made to correct a mistake in expression. This principle has been extended to cases where the party sought in good faith to modify the instrument so as to conform to the intention of the parties, but for some reason failed in his alteration to express the real intention of the parties. Thus an innocent alteration of the date of the note, made in good faith, to correspond to the date of delivery under the belief that the parties intended such date, does not avoid the contract.8 So a bona fide alteration in a memorandum of guaranty, made by guarantee without the knowledge of the guarantor, intended to correct an error in the amount of the debt, but which did not state the correct amount does not avoid the memorandum thu debt being otherwise identilled.9 Such an alteration will, however, discharge a party to the written instrument who did not know of the real contract between the parties and was not a party thereto. Thus a change in the date to conform to the agreement of the maker and payee releases an accommodation indorser.10 So a change after indorsement but before delivery, changing the place of payment to another state, releases an accommodation party.11 In some jurisdictions, however, it is held that a mistake in expression cannot be corrected by the action of one party alone, and that such a correction is an alteration, avoiding the contract if material ;12 though ordinarily not fraudulent.
12 Shirley v. Swafford, 119 Ga. 43; 45 S. E. 722; see Sec. 1515.
1 Pigot's Case, 11 Coke 26fe; Waugh v. Bussell, 5 Taunt. 707; Trew v. Burton, 1 Cromp. & M. 533; Davidson v. Cooper, 13 M. & W. 343.
2 Andrews v. Calloway, 50 Ark. 358; 7 S. W. 449; Pry v. Pry, 109 111. 466; Condict v. Flower, 106 111. 105; Paterson v. Higgins, 58 111. App. 268; Piersol v. Grimes, 30 Ind. 129; 95 Am. Dec. 673; Lee v. Alexander, 9 B. Mon. (Ky.) 25; 48 Am. Dee. 412; Ferguson v. White (Miss.), 18 So. 124: State Pemiscott County v. Scott, 104 Mo.
26; 15 S. W. 987; 17 S. W. 11; Lub-bering v. Kohlbrecher, 22 Mo. 596; Moore v. Ivers, 83 Mo. 29; Schla-geck v. Widholm, 59 Neb. 541; 81 N. W. 448; Bingham v. Shadle, 45 Neb. 82; 63 N. W. 143; Casoni v. Jerome, 58 N. Y. 315; Martin v. Insurance Co., 101 N. Y. 498; 5 N. E. 338; Solon v. Bank, 114 N. Y. 134; Van Brunt v. Eoff, 35 Barb. (N. Y.) 501; Tarbill v. Mill Works, 1 Ohio C. D. 643; Murray v. Peterson, 6 Wash. 418; 33 Pac. 969; Yeager v. Musgrave, 28 W. Va. 90. 1 Bryant v. Bank, 107 Tenn. 560; 64 S. W. 895.
2 Sill v. Reese, 47 Cal. 294; .Ryan v. Bank, 148 111. 349; 35 N. E. 120; Duker v. Franz, 7 Bush. (Ky.) 273; 3 Am. Rep. 314; Niek-erson v. Swett, 135 Mass. 517; Ames v. Colburn, 11 Gray (Mass.) 390; 71 Am. Dec. 723; Bank v. Carson, 60 Mich. 432; 27 N. W. 589; Goode-now v. Curtis, 33 Mich. 505; Mc-Raven v. Crisler, 53 Miss. 542; Kountz v. Kennedy, 63 Pa. St. 187; 3 Am. Rep. 541; McLaughlin v. Venine, 2 Wyom. 1.
3 McClure v. Little, 15 Utah 379; 62 Am. St. Rep. 938; 49 Pac. 298.
4 0sborn v. Hall, 160 Ind. 153; 66 X. E. 457.
5 Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577; 58 N. E. 162.
6 Derby v. Thrall, 44 Vt. 413; 8 Am. Rep. 389.
7 Ames v. Colburn, 11 Gray (Mass.) 390; 71 Am. Dec. 723.
8 Wallace v. Tice, 32 Or. 283; 51 Pac. 733; citing Bowers v. Jewell, 2 N. H. 543; Booth v. Powers, 56 N. Y. 22; Kountz v. Kennedy, 63 Pa. St. 187; 3 Am. Rep. 541.