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.
Interlineations and erasures are suspicious, and it is well to explain them, if possible. Alteration is often criminal and always wrongful, and ought not to be presumed without some evidence. What presumption ought to arise on the production of a written instrument which shows erasures and interlineations on its face, and whether it will be assumed that they were made before execution or after execution is a question which has been answered in different ways at different times. The original common-law rule seems to have assumed that the possibility of alteration amounted to a probability.1 The writers who attempt to state the early common law leave it at least doubtful whether an alteration would not be presumed to have been made before execution,2 unless a memorandum of such interlineation was made at the time of execution.3 This rule seems to have been adopted in some of the earlier cases in the United States.4 Even in early English law, however, it seems to have been presumed that an interlineation was made at execution.5
7 United States. Steele v. Spencer, 26 U. S. (1 Pet.) 552.
Alabama. Payne v. Long, 121 Ala. 385, 26 So. 780.
Arkansas. Overton v. Matthews, 36 Ark. 146, 37 Am. Rep. 9. (This point not touched on in opinion in 37 Am. Rep. 0.)
Georgia. Heard v. Tappan, 116 Ga. 030, 43 S. E. 376.
Illinois. Milliken v. Marlin, 66 III. 13.
Indiana. Cochran v. Nebeker, 48 Ind. 460.
Iowa. Hessig-Ellis Drug Co. v. Todd-Baker Drug Co., 161 la. 535, 143 N. W. 660.
Kansas. Holyfield v. Harrington, 84 Kan. 760, 30 L. R. A. (N.S.) 131, 115 Pac. 646.
Maine. Belfast National Bank v. Harriman, 68 Me. 522.
Massachusetts. Drum v. Drum, 133 Mass. 566.
Nebraska. Fisherdick v. Hutton, 44 Neb. 122, 62 N. W. 488.
New Hampshire. Burnham v. Ayer, 36 N. H. 361.
Pennsylvania. Stephens v. Graham, 7 Serg. & R. (Pa.) 505, 10 Am. Dec 486.
South Carolina. Kinard v. Glenn, 20 S. Car. 590, 8 S. E. 203.
West Virginia. Philip Carey Mfg. Co. v. Watson, 58 W. Va. 180, 52 S. E. 515.
1 London & Brighton R. R. Co. v. Fairclough, 2 Mann. & G. 674.
2 Sheppard's Common Assurances, 501 et seq. (Part 11, Ch. 8); II Black-stone's Commentaries, 308.
3 II Blackstone's Commentaries, 308. 4 Bailey v. Taylor, 11 Conn. 631, 20 Am. Dec. 321. 5 Trowel v. Castle, 1 Keb. 21.
The theory of the modern law is that since the alteration of a contract without the consent of the adversary is a wrongful act, at least when not the correction of a mistake in expression, and it is often a criminal act, and since criminal or wrongful conduct will not be presumed, the weight of authority is that alterations apparent on the face of the instrument do not of themselves raise any presumption of its invalidity, as it will be presumed that they were made before execution.6 Accordingly, under this rule, it is not necessary for the party relying upon the instrument to explain such alterations7-the burden of proof is upon the party attacking the instrument;8 and it is not proper to leave it for the jury to say upon mere inspection of the instrument whether there had been an alteration therein after execution.9 This rule is applied with especial force to alterations which are self-explanatory.10
It has been said that this rule can not apply where the signature of an obligor has been erased, since this must have been made after execution.11 However, since it is not signing but delivery that constitutes execution, the reason alleged for this rule does not seem to exist; and the rule itself is not always followed.12
6 United States. Hanrick v. Patrick, ' 119 U. S. 156, 30 L. ed. 396.'
Arkansas. Gist' v. Gana, 30 Ark; 285; Klein v. Bank, 69 Ark. 140, 86 Am. St. Rep. 183, 61 S. W. 572.
Indiana. Stayner v. Joyce, 120 Ind. 99, 22 N. E. 80; Worth v. Wheatley, 183 Ind. 598, 108 N. E. 958.
Iowa. Tharp v. Jamison, 154 la. 77, 39 L..R. A. (N.S.) 100, 134 N. W. 583; First National Bank v. Patterson, -la. -, 177 N. W. 545.
Kansas. J. I. Case Threshing Machine Co. v. Peterson, 51 Kan. 713, 33 Pac 470.
Kentucky. Pike County v. Sowards, 147 Ky. 37, 143 S. W. 745.
Massachusetts. Simpson v. Davis, 119 Mass, 269, 20 Am. Rep. 324.
Michigan. Willett v. Shepard, 34 Mich. 106; Ensign v. Fogg, 177 Mich. 317, 143 N. W. 82.
Minnesota. .Wilson v. Hayes, 40 Minn. 531, 12 Am. St. Rep. 754, 4 L. R. A. 196, 42 N. W. 467.
Missouri. Collison v. Norman, -Mo. -, 191 S. W. 60.
Nebraska. Goodin v. Plugge, 47 Neb. 284, 66 N. W. 407; Hodge v. Scott, 1 Neb. (unoff.) 619, 95 N. W. 837.
Ohio. Huntington v. Finch, 3 O. S. 445; Franklin v. Baker, 48 O. S. 296, 27 N. E. 550.
Pennsylvania. Bowman v. Berkey, 259 Pa. St. 327, 103 Atl 49.
7 Klein v. Bank, 69 Ark. 140, 86 Am. 8t. Rep. 183, 61 S. W. 572; Franklin v. Baker, 48 O. S. 296, 27 N. E, 550.
8 Hart v. Sharpton, 124 Ala. 638, 27 So. 450; First National Bank v. Patterson, - la. -, 177 N. W. 545; Huntington v. finch, 3 O. S. 445; Franklin v. Baker, 48 O. S. 296, 27 N. E. 550; Galloway v. Bartholomew, 44 Or. 75, 74 Pac 467; Wolferman v. Bell, 6 Wash. 84, 36 Am. St. Rep. 126, 32 Pac. 1017.
9 Merritt v. Boyden, 191 111. 136, 60 N. E. 907.
10 Hart v. Sharpton, 124 Ala. 638, 27 So. 450.
ll Blewett v. Bash, 22 Wash. 536, 61 Pac. 770.
12 Cass County v. Bank, 9 N. D 263. 83 N. W. 12.
This rale has been applied even where the alteration is of a character markedly different from the rest of the instrument.13
In other jurisdictions, and sometimes in other cases in the same jurisdiction as that in which the opposite view is expressed, it has been held that alterations are presumed to have been made after execution.14 While some of the cases in apparent conflict can be reconciled by noting that the court occasionally uses the term "presumption" for inference of fact, drawn from the entire instrument, which inference may explain the interlineation and the circumstances under which it was made, the great bulk of the cases present an irreconcilable difference of opinion, modified only by an occasional attempt to frame some compromise theory.15
Where the latter theory is in force, the burden of proof is on the party claiming under such contract, to show when the alterations were made.16 This rule has been applied to receipts.17 Evidence that such interlineations were made before the contract was signed and delivered is sufficient to justify the admission of such an instrument in evidence.18