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.
Assuming the correctness of the rule that a material alteration operates as a discharge of the contract, it should follow that if a material alteration has once been made and if the written contract has been discharged thereby, the subsequent erasure of such alteration and the restoration of the altered contract to its original condition should not revive the liability upon the original contract against a party who did not assent to such alteration and who does not assent to the restoration of the contract to its original condition. This view has been taken in most jurisdictions; and the restoration of the altered contract to its original condition does not make it enforceable against a party who is discharged by such alteration and who has not assented subsequently, either to such alteration or to such restoration.1 Equity will, therefore, not decree the restoration of the altered instrument to its original form.2 If the original alteration was made fraudulently, and if, as a result thereof, liability upon the original contract is discharged, and no quasi-contractual right arises upon the original consideration, the unauthorized erasure of the alteration and restoration of the altered contract to its original condition does not revive the original liability, either on the contract or in quasi-contract.3 If the party against whom it is sought, to enforce the contract after restoration did not receive the original consideration, as in the case of a surety, and if his liability rested solely upon the original contract, the courts hold that his liability can not revive by the restoration of the altered contract to its original condition.4 A note is avoided by the addition of "with interest," even if erased before transfer to a bona fide holder.5
11 Payne v. Long, 121 Ala. 385, 25 So. 780; Jacobs v. Gilreath, 45 S. Car. 46, 22 S. E. 757.
12 Port Huron Engine & Thresher Co. v. Sherman, 14 S. D. 461, 85 N. W. 1008; Bigelow v. Stilphen, 35 Vt. 521.
13 Nesbitt v. Turner, 155 Pa. St. 429, 26 Atl. 750; Kilkelly v. Martin, 34 Wis. 525.
14 Dickson v. Bamberger, 107 Ala.
293, 18 So. 290; Fairhaven v. Cowgill. 8 Wash. 687, 36 Pac. 1093.
15 Dickson v. Bamberger, 107 Ala. 293, 18 So. 290.
16 Lockwood v. Bassett, 49 Mich. 546, 14 N. W. 492.
17 Hagler v. State, 31 Neb. 144, 47 N. W. 692.
18 Davis v. Bauer, 41 O. S. 257; Shiffer v. Mosier, 225 Pa. St. 552, 24 L. R. A. (N.S.) 1155, 74 Atl. 426.
If the alteration was made innocently and not fraudulently, there is at least a quasi-contractual liability on the original consideration; 6 and there is some authority for saying that the parties who were liable upon the original contract may he held liable by the erasure of the alteration and the restoration of the contract to its original condition.7 This rule has been applied even to sureties who could not have been held liable on the original consideration. Thus the addition, after surety has signed, of "with interest at 7 per cent." in accordance with an understanding with payee, and its erasure by payee without fraudulent intent, do not release surety.8
1 Locknane v. Emmerson, 74 Ky. (11 Bush.) 60; Citizens' National Bank v. Williams, 174 Pa. St. 66, 72, 35 L. R. A. 464, 34 Atl. 303; Sniffer v. Mosier, 225 Pa. St. 552, 24 L. R. A. (N.S.) 1155, 74 Atl. 426; McDaniel v. Whit-sett, 96 Tenn. 10, 33 S. W. 567.
2 Ruby v. Talbott, 5 N. M. 251, 3 L. R. A. 724, 21 Pac. 72.
3 Locknane v. Emmerson, 74 Ky. (11 Bush.) 69; Citizens' National Bank v. Williams, 174 Pa. St. 66, 35 L. R. A.
464, 34 Atl. 303; McDaniel v. Whit-sett, 96 Tenn. 10, 33 S. W. 567.
4 Robinson v. Reed, 46 la. 219; Shiffer v. Mosier, 225 Pa. St. 552, 24 L. R. A. (N.S.) 1155, 74 Atl. 426.
5 Citizens' National Bank v. Williams, 174 Pa. St. 66, 72, 35 L. R. A. 464, 34 Atl. 303, 304.
6 See Sec. 3113.
7 Rogers v. Shaw, 59 Cal. 260; James v. Tilton, 183 Mass. 275, 67 N. E. 326.
8 McAlpin v. Clark, 11 Ohio C. C. 524.