
    M. R. Tutt v. W. T. Thornton.
    (Case No. 3370.)
    1. Erasure — Hon est pactum.—When one who indorses a note before its delivery, but who is not a party thereto on the face of the note, subseqtiently pays it, and sues the maker, the erasure of his indorsement by a pen-mark drawn through his signature is not a material alteration as between the parties to the suit, and does not affect the liability of the maker.
    2. Promissory note.— The payment of anote by a surety is not, as between himself and the principal, an extinguishment of the same, and his right of action against the principal is upon the note and not on an implied assumpsit.
    8. Case overruled.— Holliman v. Rogers, 6 Tex., 91, overruled.
    Appeal from Cooke. Tried below before the Hon. J. A. Carroll.
    On October 18, 1875, W. T. Thornton sued M. R. Tutt to recover on a note dated April 19, 1871, for §450, payable to the order of Henry Heckler, and signed by Tutt. Thornton wrote his name across the back of the note before its delivery to Heckler; subsequently he paid Heckler the amount of the note, and it was transferred to him. Tutt answered by plea of non est factum, and other defenses not material to the disposition of the appeal. Hpon the trial the execution of the note by Tutt was sufficiently established, but appellant insisted that the note had been materially altered, and that by reason thereof the appellant was discharged. The alleged alteration consisted in a pen-mark drawn through the name of Thornton on the back of the note. Verdict and judgment against Tutt for §805.22. The error assigned was that the court erred in not holding the alteration material and appellant thereby discharged.
    
      W. O. Davis, for appellant.
   Watts, J. Com. App.

To affect the validity of a note, the alteration complained of must be in some material matter; that is, it must be in such particular as would change the form of the obligation, confuse the evidence, or in some way affect the obligation of the parties to the instrument. Read v. Roark, 14 Tex. 330; Muckleroy v. Bethany, 23 Tex., 163; Daniels on Negotiable Instruments, Vol. 2, p. 363, etc. Here the erasing of the name of the appellee from the back of the note is claimed to be such an alteration as would discharge the appellant.

There is nothing in the record showing when or by whom the pen line was drawn through the name. Thornton testifies that he did not know when or by whom it was done.

In England the doctrine is maintained, that every material alteration of the instrument, it matters not by whom made, will avoid it.

Such is not the law in this country; for, as. well said by Mr. Daniels, “ the term ‘ alteration ’ in this country is understood to signify a material change in the contract by a party thereto, and no spoliation will avoid a bill or note (being the act of a stranger), unless it be so great as to render the words unintelligible or uncertain, in which case it is regarded as a virtual destruction of it.” Daniels on negotiable Instruments, p. 349.

There is no necessity of applying that doctrine to this case. The note was executed by Tutt, payable to Heckler; at the time of inception and before delivery, Thornton wrote his name across the back of it, assuming thereby the obligation as surety for Tutt, as shown by the evidence. Subsequently Thornton paid to Heckler the amount of the note, and the latter transferred it to him. The note found in the record (which is the original) shows that a pen line had been drawn through Thornton’s name. How, accepting this as an erasure, wherein does it increase, diminish, or in any way whatever affect Tutt’s obligation? He was the principal upon -the note; the primary obligation to pay it was upon him; and that obligation was in no "way increased or diminished or otherwise affected by reason of Thornton’s being surety upon the note. His obligation to pay it is just the same whether Thornton’s name was or was not upon the back of the instrument. From this conclusion it follows that the alteration complained of was not material as between the parties to this suit.

However, if we were to follow the case of Holliman v. Rogers, 6 Tex., 91, the judgment of the court below would have to be reversed and the case dismissed, on the. ground that when Thoniton, as surety, paid to Heckler the amount of the note, it was thereby extinguished, and he could not maintain an action upon the same. That case, in the judgment of a majority of the commission, is not ■in harmony with the decision in the case of Sublett v. McKinney, 19 Tex., 438, where it is in effect held that the payment of a note by a surety, as between him and the principal, is not an extinguishment of the same, and his right of action against the principal would be upon the note, and not upon the implied assumpsit.

A majority of the commission concur in. the doctrine announced in the latter case, and are of the opinion the judgment ought to be affirmed.

Atfiemed.

[Opinion delivered May 9, 1882.]  