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.
An immaterial alteration is one which does not change the legal effect of the written instrument.1 The fact that the party who made such alteration intended to alter the legal effect of the instrument, does not make such alteration material if the legal effect of the instrument after such alteration is the same as it was before.2 If a provision waiving exemptions and the like is void, an alteration inserting such provision is immaterial.3 A memorandum for the payment of a higher rate of interest does not discharge a non-assenting surety if it is without consideration.4 The addition of a provision fixing the rate of interest at the legal rate where no rate had been fixed in the written contract;5 change of the rate of interest in excess of the rate fixed by the written contract where such rate was the highest allowed by law;6 adding the word "annually*' to the phrase "with interest at the rate of ten per cent.;"7 adding "with exchange" if the law would allow exchange without such addition;8 adding "or order" to an indorsement in blank; 9 adding "or bearer" to an instrument which is non-negotiable because subject to conditions;10 and adding "payment guaranteed" over the signature of an indorser where the note waives presentment, notices and protest,11 are immaterial alterations. Where days of grace are allowed only on bills of exchange or on notes placed on the same footing, the addition of the word "fixed" to the date of maturity of a note, thereby providing against days of grace, has been held to be an immaterial alteration in case the note is never put on the footing of a bill of exchange by being discounted at a bank, though it was payable at a bank and might have been put on the footing of a bill of exchange.12 If a blank in the phrase, which shows at what time interest is to begin, is filled by mistake so as to provide that the note bears interest at a certain rate "from annum until paid," such mistake can be corrected by construction; and in legal effect it is a promise to pay such interest from date. Accordingly, the change of the word "annum" to the word "date" is an immaterial alteration.13 A memorandum on the back of a note, which provides for compound interest, does not amount to a material alteration if there is no consideration for such promise;14 and accordingly, such memorandum will not discharge a surety, although he did not assent thereto.15 It is held that the serial number of a bond is not a part of the instrument, and that accordingly an alteration of such number is immaterial.16
1 Jordan v. Long, 109 Ala. 414, I9 To. 843.
2 Davis v. Eppler, 38 Kan. 620, 10 Pac. 703; Schwartz v. Wilmer, 90 Md. 136, 44 Atl. 1059.
3 White v. Harris, 69 S. Car. 65, 104 Am. St. Rep. 791, 48 S. E. 41.
4 Tate v. Fletcher, 77 Ind. 102. 5 Merrick v. Boury, 4 O. S. 60.
6 Consumers' Ice Co. v. Jennings, 100 Va. 719, 42 S E. 879.
7 McDaniel v. Whitsett, 96 Tenn. 10, 33 S. W. 567.
1 United States. Gordon v. Chattanooga Third National Bank, 144 U. S. 97, 36 L. ed. 360.
Alabama. Carlisle v. Bank, 122 Ala. 446, 26 So. 115.
Idaho. Exchange State Bank v. Taber, 26 Ida. 723, 145 Pac. 1090.
Indiana. Huff v. Cole, 45 Ind. 300; Bucklen v. Huff, 53 Ind. 474.
Iowa. Laub v. Rudd, 37 la. 617.
Kentucky. Bowling v. Bowling, 172 Ky. 32, 188 S. W. 1070; Citizens' State Bank v. Johnson County, 182 Ky. 531, 207 S. W. 8.
Massachusetts. Bank v. Hyde, 131 Mass. 77, 41 Am. Rep. 193.
Michigan. Leonard v. Phillips, 39 Mich. 182.
Minnesota. Spieriffg v. Spiering, 138 Minn. 119, 164 N. W. 583.
Missouri Moore v. Bank, 22 Mo. App. 684.
Nebraska. Blenkiron v. Rogers, 37 Neb. 716, 31 L. R. A. (N.S.) 127, 127 N. W. 1062.
New York. Davin v. Isman, 228 N. Y. 1, 126 N. E. 257.
North Dakota. Eaton v. Delay, 32 N. D. 328, L. R. A. 1916D, 528, 155 N. W. 644; Merchants' National Bank v. Brastrup, - N. D. -, 168 N. W. 42.
Ohio. Huntington v. Finch, 3 O. S. 445; Holland v. Hatch, 15 O. S. 464.
Oregon. First National Bank v. Mack, 35 Or. 122, 57 Pac. 326; Temple v. Harrington, 90 Or. 295, 176 Pac 430.
Washington. Lombardo v. Lombar-dini, 57 Wash. 352, 32 L. R. A. (N.S) 515, 106 Pac. 907.
West Virginia. Bank v. Evans, 9 W. Va. 373.
Wisconsin. Krouskop v. Shonts, 51 Wis. 204, 37 Am. Rep. 817, 8 N. W. 241.
2 Iowa Valley State Bank v. Sigstad, 96 la. 491, 65 N. W. 407; Keene v. Miller, 103 Ky. 628, 45 S. W. 1041; Tranter v. Hibberd, 108 Ky. 265, 56 S. W. 160; Goodenow v. Curtis, 33 Mich. 505; Port Huron First National Bank v. Carson, 60 Mich. 432, 27 N. W. 589; Weaver v. Bromley, 65 Mich. 212, 31 N. W. 839; Holland v. Hatch, 15 O. S. 464.
3 Holland v. Hatch, 15 O. S. 464.
4 Huff v. Cole, 45 Ind. 300; Bearse v. Lebowich, 212 Mass. 344, 09 N. E. 175.
Contra, Saunders v. Bagwell, 32 S. Car. 238, 7 L. R. A. 743, 10 S. E. 946.
5 Port Huron First National Bank v. Carson, 60 Mich. 432, 27 N. W. 580; Merchants' National Bank v. Brastrup, - N. D. - 168 N. W. 42 (obiter).
6 Keene v. Miller, 103 Ky. 628, 45 S. W. 1041.
Contra, Harsh v. Klepper, 28 O. S. 200.
7 Leonard v. Phillips, 39 Mich. 182. (In this case ten per cent, was held to mean ten per cent. annually; and the word "annually" was held to refer to the rate of interest and not to the time of payment.)
8 Galva First National Bank v. Nordstrom, 70 Kan. 485, 78 Pac. 804.
9 Weaver v. Bromley, 65 Mich. 212, 3l N. W. 830.
10 Goodenow v. Curtis, 33 Mich. 505.
11 Iowa Valley State Bank v. Sigstad, 96 la. 491, 65 N. \V. 407.
12 Tranter v. Hibberd, 108 Ky. 265, 56 S. W. 169.
A change in the name of the promisee which' does not change the legal effect of the instrument,17 such as a change in the name of the corporation to which the promise is made, so as to make it conform to the true name of the corporation,18 or adding "& Co." to the name of the promisee,19 is not a material alteration. Since the principal debtor can either be compelled to pay before his surety can be compelled to pay, or the surety may compel the principal to exonerate him, the erasure of the name of a surety is not a material alteration so as to discharge the principal.20
While removing a memorandum which is a part of a contract, is ordinarily a material alteration,21 the removal of a memorandum which has no legal effect, is an immaterial alteration.22 The removal of a memorandum to the effect that "this note is given upon condition," but which does not show what the condition was, is said to be an immaterial alteration.23
Inserting an additional provision which has been performed before such insertion, as a provision for security, which is already given,24 or an agreement to become surety on a renewal note, which has already been done,25 is immaterial. The erasure from a building contract of a recital of receipt of the first payment, which has not in fact been made, is immaterial, since such term is not contractual and could have been contradicted by extrinsic evidence.26 In a contract between property owners and the contractor for grading a street which provided that each owner was to pay in proportion to his interest in the abutting property, an interlineation was made, "each party hereto to pay only such parts of the total cost as his front footage bears to the total frontage improved in said street." Such interlineation was held to be immaterial.27 The addition to the correct description of realty in a mortgage the words "containing one hundred sixty acres more or less," which is the correct number, has been held immaterial.28 The addition of an internal revenue stamp has been held to be an immaterial alteration of a note payable in Massachusetts, since the Massachusetts courts have held that the provision of the federal statutes making such instruments inadmissible in evidence if a revenue stamp is not affixed, applies only to the federal courts and not to the state courts.29
13 Temple v. Harrington, 00 Or. 295, 176 Pac. 430.
14 Schroyer v. Thompson, 262 Pa. St. 282, 2 A. L. R. 1567, 105 Atl. 274.
15 Schroyer v. Thompson, 262 Pa. St. 282, 2 A. L. R. 1567, 105 Atl. 274.
16 Citizens' State Bank v. Johnson County, 182 Ky. 531, 207 S. W. 8.
17 Elliott v. Blair, 47 111. 342; Blenk-iron v. Rogers, 87 Neb. 716, 31 L. R. A. (N.S.) 127, 127 N. W. 1062.
18 Blenkiron v. Rogers, 87 Neb. 716, 31 L. R. A. (N.S.) 127, 127 N. W. 1062. 19 Elliott v. Blair, 47 111. 342.
20 Huntington v. Finch, 3 O. S. 445.
21 See Sec. 3085.
22 Palmer v. Largent, 5 Neb. 223, 25 Am. Rep. 479.
23 Palmer v. Largent, 5 Neb. 223, 25 Am. Rep. 479.
24 J. I. Case Threshing Machine Co v. v. Ebbighausen, 11 N. D. 466, 92 N. W. 826.
If the name of a witness is unnecessary, the erasure thereof is said to be an immaterial alteration.30