
    J. H. Schryver v. C. H. Hawkes and W. W. Bierce.
    1. "Where a note is signed in "blank, with marginal figures indicating tbe' amount for which it is to be filled up, and the parly to whom it is intrusted for filling up and negotiation, alters the figures, and fills up and negotiates the note for a larger amount, this is no forgery of the note, and the simple fact of alteration does not of itself, and necessarily, vitiate the note, although the party so signing in blank was surety,, and known to the payee to have signed it as such.
    
      .2. "Where the charge of the court is correct so far as it goes, but omits to state a proposition of law involved in the case, but to which its attention was not called, otherwise than by a general exception to the charge, the omission is not error i'or which the judgment will be reversed, provided the jury are not misled by the charge.
    Error to the District Court of Pickaway eouDty.
    The original action was brought by Hawkes, against .Schryver and Bierce, upon a promissory note executed to him by Bierce as principal and Schryver as surety, for the sum of $650. Judgment was taken against Bierce by default. Schryver set up as a defense that he signed the note in blank, with the figures “$600” written in the •■usual place on the margin of the paper, indicating and limiting the amount for which the note was to be filled up, and delivered the same to Bierce, who subsequently, and before filling up and delivering it to Hawkes, fraudulently, and with the knowledge of Hawkes, altered these .•figures from $600 to $650. Issue was taken on the truth of this defense, and tried to a jury; and, on the trial, evidence "was given tending to show the truth of the defense, •and that, at the time of receiving the note, Hawkes had reason to believe or suspect, Rom the appearance of the note itself, that its amount had been so altered. The court was thereupon asked by Schryver to charge the jury, that, ■if they should find that the figures “ $600 ” were so written in the margin of the note for the purpose of limiting its amount, and were so altered by Bierce before filling up and •'delivery of the note, and without Schryver’s knowledge or •consent, and should also find that at the time of the delivery of the note to Hawkes, he was aware that Schryver .signed the note as surety for Bierce, then Schryver was not liable on the note. The court refused to give this instruc■tion, but of its own accord, and without further request, instructed the jury, that “the figures on the margin of the note were not a necessary part of the note,” but that if Hawkes “knew, or had reason to believe” at the time he received the note, either from an inspection of the paper or otherwise, that the note was filled up with a larger sum. than that agreed upon by Schryver and Bierce, the plaintiff can not recover against Schryver. This charge, and the refusal to charge as asked, were excepted to by Schryver, and a verdict and judgment were rendered' against him. Shryver prosecuted his petition in error in the District Court, where the judgment was affirmed, and he now seeks to reverse both judgments by his petition in error here, the only ground of reversal relied upon being, that the court erred in its charge to the jury, and in refusing the instruction asked.
    
      R. A. Harrison, for plaintiff in error:
    The court erred in its charge to the jury and its refusal-to charge, as shown by the bill of exceptions.
    Marginal figures over a blank signature limit the authority of the holder to fill with a note or bill for that amount,, and by the law-merchant and usage constitute letters of credit to that amount only. Norwich Bank v. Hyde, 13 Conn. 279; 2 Parsons’ Bills and Notes, 12.
    By such usage, and the common understanding of men in regard to negotiable and commercial paper, this is as effective and intelligible a limitation, and as pointedly apprises the taker of the paper of such limitation, as if the' instruction had been written out in full on the paper, or the note had been filled up. It is not only evidence of such limitation between the principal and surety, but also-notice thereof to the creditor.
    
    If the signature is wholly in blank, the surety authorizes- and justifies the creditor in believing the authority of the principal to be without limit as to the amount, time of payment, rate of interest, place of payment, or person to whom payable, etc. And it is the surety’s fault, if the principal violates his private instructions. But the surety may limit the principal in some of these terms, and leave him full discretion in the others. By the marginal figures he has-limited the amount, and left the other terms without limit.. Agawam Bank v. Sears, 4 Gray, 95.
    
      The maker of a promissory note altered its date without the knowledge or consent of the surety thereto, after execution, but before delivery: Held, that the surety was discharged by the alteration.
    
      Britton v. Dierker, 46 Mo. 591; Waterman v. Vase, 43 Me. 511; Wood v. Steele, 6 Wal. 80; Heffner v. Wenrich, 32 Penn. St. 423; 2 Pars. Notes and Bills, 550; 33 Mo, 398, 406, 542.
    If the principal alters a note wholly filled up before it is> delivered, and without the knowledge of the payee, the-surety is not bound. Agawam Bank v. Sears, 4 Gray, 95,
    Why ? Simply because it'is the payee who has reposed confidence in the integrity of the principal, in believing the-paper to be genuine and unaltered.
    Why does not the reason apply with the same force to-the restriction by marginal figures? The payee can only be imposed upon by a fraudulent, and, perhaps, criminal-alteration. He reposes confidence that the principal is not. guilty of this. If he doubts, he should inquire. By not inquiring he takes that risk.
    But it is urged that the surety was guilty of negligence,, and should therefore bear the loss.
    It will be observed that the. fraud in this case was not perpetrated by filling a blank; but by altering what was already written. The use of numerals in the margin or body of a note is not negligence because more easily altered so as not to excite suspicion than the numbers written out in full.
    The question involved in this case is one of general interest, and, as far as our search extends, has never been decided in any reported ease.
    In the case of Haynes v. The State, 15 Ohio St. 455, the-question was presented, whether or not the marginal figures in a bank note were part of the note? Welch, J., in delivering the opinion of the court in that case, said, after fully discussing the question, “ Were the marginal figures part of the note?
    “ I am not therefore prepared to say, that an alteration of a bank note, within the meaning of the statute, may not be effected, in a proper case, by merely altering the marginal figures of the note; as where the words have been innocently obliterated, thus rendering a fraud practicable by that means alone.”
    The instruction given was actually wrong, because Iiawkes may have had sufficient knowledge or information to have put him upon inquiry as to the existence of the fact, and yet he may not have had sufficient knowledge or information upon which to found a belief of the truth or existence of the fact.
    The rule for which I contend, is that the purchaser or holder who takes a negotiable security under suspicious circumstances, or without due caution or inquiry, is, by that single fact, deprived of the character of a bona fide holder without, notice, although he gave value for the instrument. Gill v. Cubitt, 3 Barn. & C. 466; Beckworth v. Correll, 3 Bing. 44; Snow v. Peacock, 8 Bing. 406; Strange v. Wigney, 6 Bing. 677; Down v. Halling, 4 B. & C. 330; Hatch v. Searles, 31 Eng. L. & Eq. 219; Sandford v. Norton, 14 Vt. 228; Had v. Hale, 8 Conn. 336; Boyd v. McIver, 11 Ala. 822; Danforth v. Dart, 4 Duer, 101; Pringle v. Phillips, 5 Sandf. 157; Keutgen v. Parks, 2 Id. 60; Nicholson v. Patten, 13 La. 213; Smith v. Mechanics’ Bank, 6 La. An. 610; Greenmaux v. Wheeler, 6 Texas, 515; Hosbrook v. Mix, 1 E. D. Smith, 154; Cone v. Baldwin, 12 Pick. 545; Merriam v. Granite Bank, 8 Gray, 254; Gould v. Stevens, 43 Vt. 125. This case was decided in 1870.
    The following Ohio cases seem to recognize the doctrine of the preceding cases as the true doctrine. Bassett v. Avery, 15 Ohio St. 308; Gano & Thomas v. Samuel, 14 Ohio, 603; McKesson v. Stanbery, 3 Ohio St. 155; Roxborough v. Messick, 6 Ohio St. 451; Bailey v. Smith, 12 Ohio St. 404. 'To like effect are Cooper v. McClurban, 22 Penn. 80, and Williamson v. Brown, 15 N. Y. 354.
    In the case of Pringle v. Phillips, 5 Sandf. 156, this question was examined with great ability and learning. It contains a full review of the English and American authorities. It was cited and approved in the case of Roth & Co. v. Calvin, Allen & Co., 32 Vt. 135, which is also a reviewing case. In view of these cases, an argument upon the question would be a work of supererogation.
    But many recent cases disapprove of this doctrine on the ground of its alleged interference with the free currency .and circulation of negotiable securities, transferable by indorsement or by delivery, during the time they have to run. These eases hold, that mere uegLigence, however gross, not amounting to willful and fraudulent blindness, and abstinence from inquiry, will not amount to malafides, or notice, although it may be one of the evidences of it. Crook v. Jades, 5 B. & Ad. 909; Goodman v. Harvey,4 Ad. & E. (31 Eng. Com. Law), 870; Raphael v. Bank of England, 33 Eng. L. & Eq. 276; May v. Chapman, 16 M. & W. 355; Arbonin v. Anderson, 1 Ad. & E. 498; Palmer v. Richards, 1 Eng. L. & Eq. 529; Goodman v. Simonds, 20 Howard, 343; Bank of Pittsburgh v. Neal, 22 Id. 96; Murray v. Lardner, 2 Wal. 110; Gwynn v. Lee, 9 Gill, 138; Brush v. Scribner, 11 Conn. 368; Worcester Bank v. Dorchester & M. Bank, 10 Cush. 488; Magee v. Badger, 34 N. Y. 247; Belmont Branch Bank v. Hoge, 35 N. Y. (disapproving of the cases in Sandford and Duer, supra, and affirming Magee v. Badger, supra); Phelan v. Moss, 67 Penn. St. 59; Hamilton v. Vought, 34 N. J. 18. See also the following authorities: 1 Pars. N. & B. 259; Story on Bills, secs. 416, 194; Greenaux v. Wheeler, 6 Texas, 515; Elliott v. Martin, 6 Md. 509; Commercial, etc., Bank v. First National Bank, 30 Md. 11; Mathews v. Poythress, 4 Geo. 287; Crosby v. Grant, 36 N. H. 273.
    
      Henry F. Page, for defendant Hawkes :
    The charge asked for was clearly wrong. It required the ■court to state to the jury, as law, that the note was void if Bierce tilled it up contrary to his authority, whether Hawkes knew of this secret instrument or not. The judge properly refused so to instruct the jury, and the defendant asked nothing further. He contented himself with excepting to the instructions actually given in general terms, without specifying his objections. lie did not ask the judge to be more full and explicit, nor to give a definition of the word notice. No doubt the learned judge would have done so cheerfully and lucidly, if requested. This opportunity was not afforded the court, and neither the judge nor the plaintiff’s counsel ever heard of the objection now urged until this petition in error was filed.
    I now understand the defendants’ counsel to object to the charge because the judge did not instruct the jury that the appearance of the paper put the plaintiff upon inquiry or something of that kind. This is insisting that the court should have given a definition of the term notice; for information which makes it the duty of a party to inquire, is notice of all facts which might be thereby ascertained after a reasonable time for making the inquiry. Hilliard on Vend, and Purch. 401; 4 Kent’s Com. 172;. Jeremy’s Eq. 282; 4 Ohio, 458; 13 Vesey, 120; Newland, 511; Madd. Ch. 327; 9 Conn. 290; Blackwood v. Jones, 4 Jones Eq. (N. C.)54; Story Eq. Jur., sec. 400; Fullerton v. Sturges, 4 Ohio St. 534; 1 Parsons on B. & N. 109; Weirick et al. v. Mahoning County Bank, 16 Ohio St. 307; Magee v. Badger, 34 N. Y. 249; 6 Barb. 78.
    It will be noticed that the exception to the charge of the court is an exception to the whole charge in general terms. If the charge as given is correct, then the exception is not well taken, even though the court omitted to charge upon some points in the case. 20 Barb. 346; 2 Selden, 233;. 1 Kernan, 416; 2 Wal. (U. S.) 329. The charge was undoubtedly correct so far as it went.
    Pigures in the margin of a note or bill are only as an-index for convenience of reference, or a kind of abridged statement of the contents; but they form no controlling or essential part of the instrument, and therefore an alteration of them does not vitiate it. Parsons on B. & N. 546; Smith v. Smith, 1 R. I. 399; Commonwealth v. Emigrant I. S. Bank et al., 98 Mass. 12; Reiley v. Dickens, 19 Ill. 29.
    The court will no doubt bear in mind that the present ease preseuts a question as to the making of a note, and not as to its alteration after it had been made. The alteration of a note already made is forgery; but the alteration of paper not yet discounted or delivered, is only a violation of authority or of a trust. It seems that if an agent, in filling up a blank note, exceeds his authority, and a third person receives the note with knowledge that the authority was limited and has been transcended, the note will not be void in toto, but only for the excess beyond the sum which was authorized. It is not a case of forgery, but a breach of trust. It is a case where an agent has not pursued his authority. Johnson v. Blaisdall, 1 S. & M. 11; Terry v. Fisk, 10 S. & M. 590; 1 Cromp. & Jer. Excheq. 316; Goss v. Whitehead, 33 Miss. 213; Selzer v. Brock, 3 Ohio St. 302.
    If the preceding doctrine is correct, Hawkes might yet cure the error, if any, by remitting the excess.
    
    The words -written in the body of a certificate, bill, or note, when plain, definite, and certain, must control without regard to the superscription in figures. Chitty on Bills-(2 Am. from 9 Bond, ed.), 149-160; Story on Bills, 42; Story on Prom. Notes, 21; Saunderson v. Piper, 5 Bing. N. Cas. 425; Mears v. Graham,, 8 Blatchf. 144; Payne v. Clark, 19 Mo. 152; Poorman v. Mills & Co., 39 California, 395 (2 Amer. Rep. 451).
   Welch, C. J.

Did the court err, either in refusing to-charge as requested, or in the instructions which it gave? We are of opinion that it did not.

The charge requested is based upon the theory that the alteration of the marginal figures, and filling up the blauk with a note corresponding to the alteration, is a forgery of the note. No ease is cited in support of this theory, and it seems to be well settled by authorities that such is uot the-law. Without the figures the blank signature was an authority to fill up with any sum, and the office of the figures was merely to limit the authority and to convey notice to parties interested of the fact of limitation. They were no part of the note, for there was no note of which they could form any part. The paper was a mere power of attorney,. with private instructions given in such form as to be conspicuous, and not easily suppressed. It is the business of the principal to give notice to parties dealing with the agent of the fact of private instructions or limitations upon his authority. He must do so at his own risk, and if he adopts means to that end which prove ineffectual through the fault of his agent, the principal, and not the stranger, who has dealt with the agent in good faith, must suffer the loss. We think, therefore, that the court did not err in refusing to charge the jury that the fact of alteration would, of itself, and necessarily, discharge the surety.

Nor do we see on what ground it can be maintained that the court erred in the charge which it gave. The court ■charged the jury that if the plaintiff received the note with knowledge, or with reason to believe that the alteration had been made, he could not recover. This charge was voluntarily given by the court, and it is admitted to be good law so far as it goes. The objection is that the charge did not go farther, and inform the jury that the plaintiff’ could not recover if he had reason to suspect the alteration, or evidence to put him on inquiry. An obvious answer to this objection is, that the court were not requested so to charge. Eor aught that we can know, indeed, the court may so have charged, for the bill of exceptions does not purport to set forth all’ of the charge. The questions, therefore, mainly ■argued by counsel do not arise in. the ease. These questions are: 1. Whether there is in law any difference in such cases between “ reason to believe ” and evidence sufficient to put a party on inquiry; and, 2. Whether, if there is any such distinction, the latter is sufficient to defeat the right of a party failing to make the inquiry. These questions do not arise in the case, because there is nothing to show that the attention of the court was called to them, or if it was, to show what was said upon the subject by the court. The charge was good law so far as it went, and we think it was not calculated to mislead the jury, and that, under a general exception to the charge, without specially calling the attention of the court to the matter at the time,, the plaintiff has no just ground to complain of the alleged omission.

Judgment affirmed.  