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.
A written instrument has no legal effect until execution, and therefore, until it is executed, its language may be changed at the pleasure of the party drafting it, subject, of course, to the qualification in case of contracts that the adversary party must assent to the instrument in its final form to give it validity. Alteration before delivery makes the contract as delivered the true contract as between the parties thereto, prior negotiations, including the contract as drafted, being merged by the delivery of the contract as ultimately agreed upon.1 On the same principle, alteration of a deed with the consent of the parties and before delivery,2 or alteration after delivery if followed by redelivery,3 does not affect its validity. Putting revenue stamps on a shipping receipt is not in law an erasure of the provisions covered by such stamps, so as to prevent them from being a part of the contract.4 The act of the agent of the promisor, in filling blanks before execution in excess of his authority, is not alteration.5 In the absence of evidence to the contrary, it will be presumed that changes which are made before execution are duly authorized and that the parties have assented thereto; and accordingly such changes will not be regarded as alterations.6 If a surety has consented to a modification of the original contract before he has entered into his contract of suretyship, he can not treat such modification as an alteration;7 and he can not take advantage of it as a discharge.8 If the date at which a mortgage debt is to become due is modified before the delivery of a deed conveying the mortgaged realty to a grantee who is to take it subject to such mortgage, and such grantee knows of such modification, he can not take advantage of it as an alteration.9
Minnesota. O N. Bull Remedy Co. v. Clark, 100 Minn. 396, 32 L. R. A. (N.S.) 510, 124 N. W. 20.
North Dakota. Can field v. Orange, 13 N D. 622, 102 N. W. 313.
Oregon. Temple v. Harrington, 00 Or. 205, 176 Pac. 430.
Pennsylvania. Kountz v. Kennedy, 63 Pa. St 187, 3 Am. Rep. 541.
"In legal contemplation, an alteration of a written instrument consists in the erasure, interlineation, addition, or substitution of-material matter affecting the identity of such instrument or the rights or obligations of the parties arising therefrom, made by a party thereto, or one entitled thereunder, or one in privity with such person, without the consent of the other party, and after the instrument has been fully executed." Edwards v. Thompson, 00 Wash. 188, 160 Pac. 327.
"A material alteration of a written instrument is an intentional act done upon it, after it has been fully executed by one of the parties thereto, without the consent of the other, which changes the legal effect of the instrument in any respect." O. N. Bull Remedy Co. v. Clark, 100 Minn. 306, 32 L. R. A. (N.S.) 510, 124 N. W. 20.
For a discussion of the nature of alteration, see Holland v. Hatch, 11
Ind. 407, 71 Am. Dec. 363, and Holland v. Hatch, 15 O. S 464.
See on this subject in general, Alteration of Negotiable Instruments, by Melville M. Bigelow, 7 Harvard Law Review, 1; Discharge of Contracts by Alteration, by Samuel Williston, 18 Harvard Law Review, 105, 165; Forged and Altered Negotiable Paper, 9 American Law Review, 411, and Explaining Alterations, by Austin Abbott, 23 American Law Review, 850.
2 See Sec. 3075 et seq. and Sec. 3110 et seq.
1 Arkansas. Powell v. Fowler, 85 Ark. 451, 102 Am. St. Rep. 41, 108 S. W. 827.
California. Pelton v. Lumber Co., 113 Cal. 21, 45 Pac. 12.
Florida. Bucki v. Seitz, 30 Fla. 55, 21 So. 576.
Georgia. Winkles v. Guenther, 08 Ga. 472, 25 S. E. 527.
Indiana. Prather v. Zulauf, 38 Ind. 155.
Iowa. Tharp v. Jamison, 154 la. 77, 30 L. R. A. (N.S.) 100, 134 N. W. 583.
North Carolina. Wicker v. Jones, 150 N. Car. 102, 40 L. R. A. (N.S.) 69, 74 S. E. 801.
Oregon. Temple v. Harrington, 00 Or. 295, 176 Pac. 430.