
    William Patterson v. Cyrus McNeeley, Executor of Eliza H. Hatcher, deceased.
    In a promissory note, made payable one year after date, there was the following clause: “ The above to be at ten per cent, interest annually.” Held:
    
    1. That the word “ annually," in this connection, is to be understood as relating to, and defining the rate of interest, and is equivalent to the words per annum; and that the clause is not a stipulation lor the annual payment of interest.
    
      2. The interlining of the word "paid" before the word “ annually,” in the . clause aforesaid, is a material alteration of the note.
    3. Where such note had been signed by a surety, and was subsequently, without the knowledge or consent of the surety, so altered, before delivery, the payee being privy to such alteration at the time of delivery, and knowing that the surety had not assented thereto: Held, that no action can be-maintained, against the surety¡ upon such altered note.
    Error, to the court of common pleas of Harrison county. Reserved in the district court.
    Suit was brought in the court below, by the defendant in error, as executor of Eliza H. Hatcher, deceased, against the plaintiff in error, as one of the makers of a promissory note, a copy of which, attached to the petition, reads as follows :
    *“ $500.00. Cadiz, Ohio, October 7, 1856.
    “ One year after date we, or either of us, promise to pay Eliza H.' Hatcher, or bearer, the sum of five hundred dollars, for value received. The above to be at ten per cent, interest paid, annually - Our hands and seals.
    (Signed,) .
    “Harvey Bradshaw,
    “Benjamin Uhrick,
    “William Patterson,
    seal.
    "seal."
    seal.T
    The suit was against Patterson alone, who answered, alleging that he signed the note as a surety only, at the instance of Bradshaw, the' principal; that this fact was well known to the payee; and that when said note was so signed by him, it purported to bear simple interest at the rate of ten per cent, per annum; that when'it was subsequently presented to the payee, by Bradshaw, who desired to borrow money thereon, she objected to receiving it in that form, and that it was, thereupon, in her presence and with her full knowledge and consent, but in the absence and without the knowledge or consent of the defendant, materially and fraudulently altered byinterlining the word “paid" between the words “interest” and “ annually,” so as to make the interest accruing thereon payable annually.
    The facts thus set up as a bar to the action were traversed by a reply, and the issue was tried by a jury, who returned a special verdict, as follows:
    “Yerdict for William Patterson. Hatcher, etc., v. Patterson. We, the jury in this case, being directed by the court to find a special' verdict upon the facts submitted to us, do find as follows: 1. That William Patterson, the defendant, was surety upon the note on which suit is brought. 2. That the word “paid” interlined in the note, was written after Patterson signed the same, and when Mrs. Hatcher received it. 3.- That Mrs. Hatcher knew, at the time of said interlineation, that it had been interlined after Patterson signed it, and that the same was made without his knowledge or consent. 4. That the jury are not informed, from the proof, who made the interlineation, but that it was made with her knowledge, .and without the consent of Patterson.”
    *Upon this special verdict the court held that the plaintiff below was entitled to judgment, and accordingly entered judgment .against the plaintiff in error for the amount appearing due on the note, with interest, and for costs of suit. To all which he excepted; and thereupon filed his petition in error in the district court, asking a reversal of the judgment on the ground, among others, that the •court of common pleas “ erred in rendering judgment on said verdict in favor of said executor, when said judgment ought to have been for said Patterson.” The case was reserved in the district •court for the decision of this court.
    
      8. B. Shotwell for plaintiff in error:
    1. The surety has a right to stand on the “exact letter” of his contract as he made it. Hall v. Williamson’s Ad’mr, 9 Ohio St. 63; McGovney v. The State, 20 Ohio, 97; 17 Ohio, 565; United States v. Boyd, 15 Peters, 208; 9 Wheat. 702; Sprigg v. Bank of Mt. Pleasant, 14 Peters, 208; Evans v. Bradly, 17 Wend. 422; Bank of Steubenville v. Carroll’s Ex’r, 5 Ohio, 214.
    2. The alteration of the note was material, and being made without the knowledge or consent of Patterson, the surety, discharged him. 1 Greenl. Ev., sec. 565; Sturges & Hale v. Williams, 9 Ohio St. 443 ; Portage County Bank v. Lane, 8 Ohio St. 405 ; Story on Contr., sec. 870; 1 Parsons on Contr. 504; Boalt v. Brown, 13 Ohio St. 364.
    i The fact that the note had but one year to run, does not affect ¡the question. If the legal effect of the contract is altered for any j purpose or any intendment, the result is the same. In case the note stood longer than one year, its legal effect in that event was different from what it would have been if not altered. The terms of the contract for this purpose or intendment, at least, were changed.
    
    
      
      h. Lewton, for defendant in error:
    An alteration of a nóte after delivery, in a material part, beneficial to the holder, will, in general, vitiate it. This is founded on the presumption of fraud. But the alteration must be such as to effect some change in the meaning or legal ^operation of the instrument. 3 Ohio St. 449; 18 Pick. 173; 6 Mass. 519; 5 Mass. 538. This alteration was not made after delivery, but before.
    The alteration was not material. The words, “ to be at ten per cent, annually,” mean the same as “to be at ten per cent, paid annually.” And especially is this the case in a note which has only cne year to run. The note itself, as well as the interest, is payable in “ one year.”
    An alteration by writing in such words as the law would supply, will not vitiate. 1 Greenl. Ev., sec. 567; 13 Pick. 168; 13 Wend. 587, and authorities above cited.
    The law itself supplies the word “paid” where it was inserted in the note. It certainly was the intention of the parties that the interest was to be “paid,” and that, too, annually, for the whole was due in a year.
    The contract, as Patterson signed it, was: “We promise to pay five hundred dollars, and interest annually at ten per cent.” An interlineation or erasure apparent on the face of a deed does not of itself avoid it. To produce that effect it must be shown to have been made for some fraudulent purpose. Speake v. The United States, 3 Curtis, 242, 245. A material alteration of a deed by a stranger will not avoid it. 1 Greenl., sec. 566. To have that effect it must be made by or with the privity of one claiming under the instrument, and after the delivery and taking effect thereof. Fullerton v. Sturges, 4 Ohio St. 530.
    I claim, therefore, that the plaintiff below is entitled to a judgment on the note as it stood originally, and if necessary, the court will permit an amendment of the petition for that purpose.
   Scott, C. J.

. When Patterson, the plaintiff in error, affixed his signature to the note in question, the only stipulation which it contained on the subject of interest was in these words: “ The above to be at ten per cent, interest annually.” And the question arises: What is the proper import and meaning of this language? It was clearly intended as a declaration that the sum specified in the note should bear interest at the rate of ten per cent, per annum. Had the word *“annually” been omitted, such would still hay© ■been its legal import. A rate of interest can not be defined with fullness and precision without reference both to the quantum of percentage and the time within which that quantum shall accrue. Statutes always fix a rate of interest by reference to the period of one year; they sj)eak of interest at a given rate “per annum,” or “ annually.” And such is so generally the case in contracts, that where parties express a rate of interest by reference to percentage alone, it will be inferred that an annual per cent, was intended, and the words per annum will be-supplied. In this case, the quantum or amount of the rate per cent, was followed by the word “ annually.” We think this word was intended to express definitely what the-law would otherwise have implied; that the specified rate of ten per cent, was intended as an annual rate, and not a monthly or a biennial one. The whole clause certainly contains no express reference to anything else than the rate of interest which the note shall bear, and the words used are all pertinent and necessary in defining that rate with precision. And we see no room for the inference that anything more was meant than that the note-should bear interest at the rate of ten per cent, per annum,

If we are right in this construction, there is no doubt that the -interlining of the word “paid,” before the word “annually,” was a. material alteration of the noto. The effect of the alteration was to add to the existing terms of the-writing a further stipulation that the interest accruing upon the principal sum named in the note should be paid annually; and as a consequence, if the interest should not be promptly paid as it fell due, then the interest so in arrear should bear interest. But prior to the alteration, the terms of th© note imposed no liability to pay interest upon interest.

What, then, is the effect of this material alteration of the note, at the time- and under the circumstances shown by the verdict of the-jury? On this question, the case of Boalt v. Brown, 13 Ohio St. 36k, is directly in point. We have only to change the names of the parties in.order to make the facts bearing on this question the same in each case. And adopting substantially the language of the-court in that *case, we must say that the note, in the form in-which it was signed by Patterson, the surety, was never delivered to the payee. It was altered so as to make the interest payable annually, before delivery, in the absence of Patterson, and without hi© knowledge or assent. Patterson had assented to, signed, and au~ tkorized the delivery of one note, which Eliza H. Hatcher, the payee, declined to accept, or, at least, did not accept, but did accept another which she know Patterson had never assented to and had never signed. In all this there was evidently no contract; for the parties, Patterson and Hatcher, did not mutually assent to the same terms. Patterson’s note was never delivered, and the note which was delivered was not Patterson’s. The only supposition we can make, without imputing dishonesty to the payee, is, that in accepting the altered note, she intended to rely on the responsibility of such of the makers as had assented to the alteration; and of these she knew Patterson was not one. With them only did she contract, and from them only can she, or her representative, demand damages for non-performance.

On the facts, as found by the verdict of the jury, Patterson, the plaintiff in error, was entitled to judgment. The judgment of the court of common pleas will therefore be reversed, and judgment entered in favor of Patterson on the verdict of the jury, for his costs of suit.

Day, White, Welch, and Brinkerhoee, JJ., concurred.  