
    Herman Levi v. R. J. Daniels.
    As a general rule, the court will not go beyond the errors assigned, to find others existing in the record, unless the latter be such as affect the jurisdiction of the court.
    Where the court, being requested to state separately its conclusions of law and fact, makes a sufficient finding of the facts, and renders a final judgment thereon, the judgment itself is to be regarded as a statement of the court’s conclusion of law, within the meaning of the code.
    When such finding of facts is imperfect, in that it is too general in its terms, and does not specifically find the facts in issue, but is not excepted to on that ground, and the record shows that it is sustained by the evidence, judgment will not be reversed on that account.
    In such case, if it sufficiently appears from the record that the judgment was warranted by the facts so found, and by the evidence, it will not be reversed because the court erred in its statement of the law applicable to a state of facts not found by the court, or shown by the evidence.
    Error to the Superior Court of Cincinnati.
    The original action was brought by Daniels against Levi,, upon his indorsement of a promissory note for $2,112.42,, made by S. Oberderfer to Levi. This note was given upon settlement of accounts between Daniels and 8. Oberderfer & Co., and principally, if not entirely, for the amount claimed to be due upon certain notes of a prior date, executed by Oberderfer & Co. to Daniels. One of the defenses set up, and the only one that need be here noticed, was that the prior notes had been fraudulently altered by Daniels after their execution, so as to make them call for eight instead of six per cent, interest, and that at the time of making and indorsing the note for $2,112.42, both Oberderfer and Levi, who is claimed to be a mere accommodation indorser, were ignorant of the fact that the prior notes had been so altered. Issue was taken on the facts set up in this defense. The issue was submitted to the court, a jury being waived, and the court was requested by the defendant to find separately its conclusions of fact and of law. The court, after hearing the evidence, rendered the following findings and judgment:
    “ 1. That at the time the note sued upon by plaintiff in this case was made, S. Oberderfer & Co., of Evansville, Indiana, were indebted to plaintiff’ in the amount of said note on an account stated between them; that defendant, Herman Levi, had purchased the store of S. Oberderfer & Co., and was engaged in settling up their business; and that said note was made by S. Oberderfer, in settlement with plaintiff, and indorsed by defendant.
    “2. As a conclusion of law, the court find that, admitting there may have entered into said indebtedness of S. Oberderfer & Co. to plaintiff the amount of certain other notes of Oberderfer & Co., alleged to have been altered after their execution so as to bear eight per cent, interest, instead of six per cent., being the legal rate at the time in Indiana, and all that could be collected bylaw, and although plaintiff might not have been able to recover on said altered notes, yet such alteration did not extinguish the indebtedness for which said notes were given; and said indebtedness having entered into the consideration of the note in suit, is and was sufficient to support this action against the defendant; and this is so notwithstanding the conduct of the plaintiff previous to and at the said settlement, in relation to bringing suit, on the said altered notes, and his silence concerning the said alteration.
    “And, therefore, it is considered by the court that plaintiff do recover from said defendant the sum of twenty-three hundred and seventy-two dollars and twenty-four cents ($2,372.24), with interest from the 11th day of January, a. d. 1869, together with his costs herein expended, and execution is awarded therefor.
    “ And the defendant excepts to the aforesaid conclusions-of fact, for that the same are contrary to the law and to the evidence.”
    The defendant moved for a new tral on the ground that the finding of the court was contrary to the law and the evidence. This motion being overruled, a bill of exceptions was taken, setting forth all the evidence in the cause, and. the case was taken by procedings in error to the Superior Court in general term. The only error assigned, being that the judgment was for the plaintiff, whereas, it should have been for the defendant, and the judgment was there affirmed. And now the defendant, by his petition in erroi’, asks this Court to reverse the judgment of affirmance.
    
      Herbert Jenney, for the plaintiff in error:
    1. If a promissory note or other negotiable instrament be made payable with, or from its nature beai’s, legal interest, and after it is signed thei’e be added by the holder, without the assent of the maker, words expressing a higher percentage of interest, the alteration is material and vitiates the instrument.
    
      Huntington & McIntyre v. Finch, 3 Ohio St. 445; Patterson v. McNeeley, 16 Ib. 348; Fullerton v. Sturges, 4 Ib. 529; Stephens v. Graham, 7 S. & R. 505; 2 Parsons on Notes & Bills, 551, 582; Chaphill v. Spencer, 23 Barb. 584; Wood v. Steele, 6 Wallace, 80; U. S. Bank v. Russell, 3 Yeates, 391; Miller v. Gilleland, 19 Penn. St. 119.
    2. The maker of a note, or other negotiable instrument, so altered, is not liable on a note given in settlement thereof, unless he were actually apprised of the alteration at the time he gave the substituted note. Means of knowledge are not equivalent to actual knowledge. The release of the maker of the note releases the indorser thereof.
    Byles on Bills, *257, 292, and note, 4 Am. ed.; Id; *111, 210; Newhall v. Fisher, 11 S. & M. 431; Commonwealth v. Johnson, 3 Cush. 454; Wade v. Simeon, 2 C. B. 548; 2 Parsons’ N. & B. 581, 571, and cases cited; Doty et al. v. Knox County Bank, 16 Ohio St. 133 ; Hind v. Chamberlain, 6 N. H. 225; Clark v. Ricker, 14 Ib. 44; Carlton v. Bailey, 7 Foster, 230; Martindale v. Follet, 1 N. H. 95; Smith v. Mace, 44 Ib. 553; Bigelow v. Stephens, 34 Vt. 521; Chitty on Bills, *206; White v. Hass, 32 Ala. 430; Anison v. Harmstead, 2 Penn. St. 191; Wheelock v. Freeman, 13 Pick. 165.
    
      Merrick v. Boury, 4 Ohio St. 60, relates only to . a case
    
      where the alteration was made without any fraudulent intent. So also Clute & Bailey v. Small, 17 Wend. 238; and in each of these eases, the suit was against the party liable for the precedent debt.
    3. Where it is proven that an alteration has been made in a negotiable instrument, the onus is upon the person claiming the benefit of the instrument, to show that the alteration was made under such circumstances as not to affect his rights. 2 Parsons’ N. & B. 575-577, and cases cited; United States v. Linn, 1 How. 104; Huntington & McIntyre v. Finch & Co., 3 Ohio St. 449, per Bartley, J.; see also Byles on Bills, sec. 259, 4 Am. ed.; Herrick v. Malin, 22 Wend. 388, 393; Tilton v. Clinton and Essex Ins. Co., 7 Barb. 564; Simpson v. Starkhouse, 9 Barr, 186; Henman v. Dickinson, 5 Bing. 183; Bishop v. Chambers, 1 M. & M. 716; Knight v. Clements, 8 A. & E. 215.
    4. Where a person is an accommodation indorser upon a note, and known to be such by the holder, the payee, when the note was received, he is entitled to the benefit of all the rules of law protecting sureties.
    5. Where a person is an indorser upon a note, and the note is avoided, by failure of consideration or otherwise, he is not liable for the precedent indebtedness to which he was a stranger, and in settlement of which the note was given.
    6. Where a creditor, at an adjustment of accounts between him and. his debtor, conceals material facts relating to his claim, or makes any express or implied misrepresentation of such facts, whereby a person present at the settlement, believing that the true state of the claim had been made known to him, is induced to indorse, for the accommodation of the maker, a note given in settlement of such claim, such indorser is not liable. Laxton v. Peat, 2 Camp. 185; Douglass v. Waddle, 1 Ohio, 413; United States v. Boyd, 15 Pet. 187; Miller v. Stewart, 9 Wheat. 680; State v. Medway, 17 Ohio, 565; McGovern v. State, 20 Ib. 93; Stone v. Vance, 6 Ib. 246; Clinton Bank v. Ayres, 16 Ib. 282; 1 Story’s Eq., sec. 324; Selser v. Brock, 3 Ohio St. 302; 2 Parsons on Con. 274; Smith v. Richards, 13 Pet. 26; Richards v. 
      Commonwealth, 40 Penn. St. 146; Everly v. Rice, 20 Penn. St. 297; 1 Parsons on N. & B. 236.
    7. It is immaterial whether the alteration was in the body or on the margin of the note. 2 Parsons on Con. 501; Warrington v. Early, 2 Ellis & B. 763 (75 Eng. Com. Law, 763; 18 Jur. 42); Platt v. Smith, 14 Johns. 368; Bank of America v. Woodworth, 19 Ib. 391; Sturgis et al. v. Williams, 9 Ohio St. 451, per Scott, J.; Wheelock v. Freeman, 13 Peck. 165; Heywood v. Perrin, 10 Ib. 228; Jones v. Fales, 4 Mass. 245; Springfield Bank v. Merrick, 14 Ib. 322.
    8. Allowance of interest upon the due bill does not estop the plaintiff in error from setting up the alterations as a defense. Boalt v. Brown, 13 Ohio St. 364; Ellis and Morton v. O. L. I. and T. Co., 4 Ib. 628; Bell v. Gardner, 4 Man. & G. 11; Bullock. v Ogborne, 13 Ala. 346; Mercer v. Clark, 3 Bibb, 524; Jarvis, C. J., in Southdale v. Migg, 11 C. B. 449 (73 Eng. Com. Law,); Kelly v. Solari, 9 M. & W. 53; 1 Parsons on N. & B. 201.
    
      Collins § Herron, for defendant in error:
    1. The action on a note can be maintained, although certain other notes which formed, in part, the consideration of the note in suit may have been altered by the holder after they were delivered; the debt evidenced by those notes not being destroyed by such alteration, but only those evidences of it. Atkinson v. Hawden, 2 Adol. & El. 628 (29 Eng. Com. Law, 169); Clute and Bailey v. Small, 17 Wend. 238; Fullerton v. Sturgis, 4 Ohio St. 529.
    2. The giving of time for the payment of such debt is a sufficient consideration for a new note predicated in part upon it.
    3. This is true beyond question, where the alleged alteration did not change the legal effect of the notes, and, if made, was made only to make the notes conform to the agreement for interest as supposed to be understood at the time. See Agreed Statements of State of Indiana, Read, 58; Thompson on Bills & Notes, 13; Parsons on Bills, 541; Arnold, B. & H. v. Jones, 2 R. I. 351; Smith v. Crocker, 
      2 Mass. 538; Brown v. Pinkham, 18 Pick. 172; Blair v. Bank of Tennessee, 11 Humph. 84; Moore v. Herndon, 30 Miss. 121; Wallace and Park v. Jewell, 21 Ohio St.; Granite R. R. Co. v. Bacon, 15 Pick. 239; Reed v. Kemp, 16 Ill. 449; Miller v. Reed, 27 Penn. St. 241; Adm'r of Beaman v. Russell, 20 Vt. 213; Clute and Bailey v. Small, 17 Wend. 238; Ames v. Colburn, 11 Gray, 390; Huntington and M. v. Finch, 3 Ohio St. 445; Merrick v. Boury & Sons, 4 Ib. 70; Adams v. Frye, 3 Met. 103.
    4. In the case at bar, the evidence shows that the alleged alteration was made with the consent of the makers and before the notes were delivered.
    They also commented upon cases cited for plaintiffs in error, and argued as to the rules of evidence and presumptions that ought to guide the Court in finding upon the issue of fact made in the case.
   Welch, C. J.

The general rule is, that the court will not go beyond the assignment of errors upon the record, unless it be to consider errors relating to jurisdiction. Strictly, the only error assigned being that the court rendered its judgment fer the wrong parfy, we can only inquire whether the judgment was warranted by the finding of the court. It clearly was, for the court finds that at the time of making the note in suit, S. Oberderfer & Co. were indebted to the plaintiff in the sum for which it was made. On this finding, if true and properly made, the 'court could render no other judgment than the one it did render.

The counsel for the plaintiff in error, however, seem to argue the case upon the theory that three other assignments of error had been made. They contend that the court erred, (1) in finding the facts contrary to the evidence, and in overruling a motion for a new trial predicated upon that ground; (2) in imperfectly stating its conclusion of facts, by stating it in terms too general and comprehensive, and not answering specifically the question of fact in issue; and (3) by erroneously stating the law applicable to the facts so found. Were such the actual assignments of error in the case, we still fail to see that either of them would be sustained by the record.

1. We are well satisfied that the finding of the court is supported by the evidence. The testimony set forth in the bill of exceptions convinces us that the alterations in the old notes, which were the basis and consideration of the one in suit, were made by the consent and in the presence of both the parties thereto. If that be so, then the court was right in its finding of indebtedness to the amount of the new note, and in overruling the motion for a new trial.

2. If this finding of the court was faulty, in being too general and comprehensive, and not responding to the specific questions of fact — on which question we need give no opinion now — it is enough to say that the plaintiff' in error did not except to the finding on that account, and that he is not prejudiced thereby, as the testimony which he himself has furnished us in his bill of exceptions, gives the facts in detail, and may well be substituted for a more formal and specific finding by the court.

3. The law laid down by the court in its formal finding is not laid down as the law applicable to the facts so found by the court, but as the law applicable to a hypothetical case. The proposition laid down by the court, therefore, was a mere abstraction, and it is immaterial to inquire whether the court was right or wrong. The court finds, as matter of fact, that the note in suit was founded on an indebtedness to its full amount, and then finds, as matter of law, that it is immaterial whether the old notes were fraudulently altered or not, but leaves the question whether they were so altered or n'ot wholly unanswered.

‘We, therefore, fail to see any error in the record to the injury of the plaintiff in error, and must affirm the judgment.

Judgment affirmed.  