
    Clute and Bailey vs. Small.
    Where a debtor certifies a balance as owing by him, and then draws a note stating the amount in the margin, in figures, but in the body inserting an amount a few dollars less than the true sum, as §300 instead of §334, it seems that the creditor may, without any express authority, insert the words omitted, apd make the note to conform to the original intent.
    At all events, upon such evidence, he is entitled to recover upon the common count of insimul computassct.
    
    The contents of a letter which is lost, containing a memorandum of an admission, can not be used as evidence where the writer of the letter is only able to say that what he wrote was undoubtedly conformable to the fact, and at the same time acknowledges that he has no recollection of the contents of the letter, except that it contained a proposition of settlement.
    The declaration in this case was on a promissory note; it also contained a count for goods sold, the common money counts, and an account stated. The defendant pleaded the general issue. The cause was heard before referees, who made a special report. On the hearing, the note declared on was produced, and the signature of the defendant proved. It was in this form: “ $334. Herkimer, March 14, 1833. Six months after date, I promise to pay to the order of Messrs. Clute and Bailey, at the Mohawk Bank, three hundred and, thirty-four dollars, value received. William Small.” The defendant objected to its being read in evidence, alleging that it had been altered in a material part after he had signed it. It was' then proved that the whole of the note, except the words and thirty-four, was in the handwriting of the defendant, and that those words were in the handwriting of Clute. one of the plaintiffs. The insertion of the words, and thirty-four, was thus explained: The plaintiffs produced an account of merchandise furnished by them to the defendant, which Clute took for the purpose of calling on the defendant for a settlement, and which he afterwards brought back, together with the note in question. On the account was a statement in the handwriting of the defendant, showing a balance against him of $333*21. It was also proved, that on the 19th March, 1833, the plaintiffs, by their clerk, wrote a letter to the defendant in these words: CI We have just observed that the note you gave our Mr. Clute for $334, is so expressed in figures, but is written for only three hundred dollars; the thirty-four being omitted. Piease send us your permission to insert the words deficient.” This letter was produced by the defendant on the hearing; no answer was returned to it when it was written, nor was any answer returned to a second letter of the plaintiffs of the same import. The plaintiffs further proved by their attorneys, that they sent copies of the declaration in this cause to a deputy sheriff to serve on the defendant at the commencement of this suit; that the deputy returned to them one of the copies with a certificate of service endorsed thereon, and that in the letter enclosing such copy, the deputy wrote that the defendant said he would pay the plaintiff’s demand, but no more than five dollars costs.. The letter was not produced, the attorneys proving it to be lost. The deputy sheriff testified that at the time of the service of the declaration, which was on the 27th day of November, 1833, the defendant made some offer of settlement, but he did not recollect what it was; nor did he recollect the contents of the letter written by him, but thought it probable that it contained the proposition made by the defendant, who directed him to make some proposition to the plaintiffs, and what he wrote the plaintiffs’ attorneys was undoubtedly as directed by the defendant. The proof of the contents of the letter was objected to. It was further proved, that in the autumn of 1833, after the declaration was received by the deputy sheriff, but before its service, the defendant directed a third person to call upon the plaintiffs and pay a note of three hundred dollars and upwards, which they held against him, but to pay no costs. He called accordingly and offered to pay the note, but being directed by the plaintiffs’ clerk to call upon the attorneys, and having no instructions to pay costs, he did not call upon them. Upon the evidence the cause was submitted to the referees; tho counsel for tho defendant insisting, 1. That the note was void on account of the alteration; and, 2. That the plaintiffs were not entitled to recover under the common • counts. The referees made a report in favor of [240] the plaintiffs for the full amount of the note and the interest thereof. The defendant moved to set aside the report.
    
      T. Jenkins and J. A. Spencer, for the defendant.
    
      M. T. Reynolds, for the plaintiffs.
   By the Court,

Cowen, J.

The testimony in reference to the admissions of the defendant to the deputy sheriff, was inadmissible. He was not able to say that he had been authorized by the defendant to use the language alleged to have been contained in the letter; nor was the letter produced to refresh his recollection. There was only one of two ways in which he could be allowed to speak; that is, either from positivé recollection, or from seeing the letter and knowing it to be his own statement. It might then have been treated as his memorandum, and according to some authorities, might have been received as an original entry; but even in such case, if hé could not remember the transaction, he must have been clear that he would not have so stated it, unless true at the time. This is the farthest that any cases have gone (2 Mann. & Ryl. 5, 7; 2 Nott & McCord, 334; Peck. 108, 9,118). The inquiry hero was no more than the common one to a witness; would you have asserted such a matter unless it had been true? and on obtaining the witness’s affirmative answer, going on to prove what he did say. Such an inquiry is never allowed on an examination in chief, to establish a fact. The evidence of the deputy sheriff was therefore inadmissible. The evidence was satisfactory as to the defendant’s mistake in drawing the note, and that he intended it for 334. But I do not see any considerable evidence, if the deputy sheriff’s is stricken out, to warrant the inference that the defendant had authorized the alteration. The testimony of the deputy sheriff, if admissible, tended to prove not only an express authority to alter the note, but to fortify the proof of the mistake, and the amount of the original demand. It was quite material, but being inadmissible, it seems to call for set-[241] ting aside the report. The defendant struck the balance at within a few cents of §334. He drew the note with his own hand, placing the §334 in the margin, but in the body of the note inserted only §300. This alone was enough to warrant the referees in finding, as they expressly did, that the defendant intended to make a note corresponding with the balance; and on this point the report might well be maintained, could we see that the evidence of the deputy had no influence. That we can not say. Had it been out of the way, the referees might have come to a different conclusion as to the mistake; for all the other testimony is but circumstantial.

But if the finding on the mistake were maintainable, had the plaintiffs a right to rectify the note without any express authority beyond that ? Had a naked blank been left for the sum, this court, in Boyd v. Brotherson (10 Wendell, 93),went quite far enough to sustain the alterd note as a genuine one. In that case, the creditor, whose debt was to be secured, took the note without any sum being inserted, and he and the maker filled the blank with the sum intended by the endorser, without his assent to the alteration; and held well. In Jacob v. Hart (6 Maule & Selw. 142), the date was mistaken. It was rectified by the payee, at first, without the acceptor’s assent; but he afterwards said, “that was right;” held well. The alteration postponed the time of payment one month. And in Brutt v. Picard (Ryl. & Mood. N. P. Cas. 37), a like alteration was allowed without any express consent, either of drawer or drawee. The date was by mistake in 1822, instead of 1823. But the cases allowing an alteration of express words, without the authority of the party to be affected, even to correct a mistake, are very scant, while they are quite numerous that a mere omission may be supplied. No distinction however, appears to be expressly established by the cases. Mr. Chitty seems to consider them all as standing on the same principle, and that those cases which authorize the ex parte filling up of a mistaken blank, equally authorize the correction of any plain mistake in the same way. (Chitty on Bills, ed. of 1836, p. 206, 207). Both are certainly carrying out the original [242] intent of the parties. Either set of cases must be maintained, if at all, on that ground. And in Kershaw v. Cox (3 Esp. R. 245), which was a mistaken omission of the words “ or order,” in a bill endorsed by the defendant, Le Blanch, J. put it to the jury, on very slight circumstances, to infer the assent of the defendant, who was the endorser, that the omitted words should be inserí ed. They had certainly been put into the bill without the defendant’s previous assent. And see per Parsons, C. J. in Hunt v. Adams (6 Mass. R. 522).

If the plaintiffs had no right to correct the mistake, the alteration avoided the note, and put that out of the question. Then, were the plaintiffs remitted to. the original consideration? The late case of Atkinson v. Hawdon (2 Adolph. & Ellis, 628), holds that they were; and that they might recover upon tho account stated. It is supposed that this court held about the same time that they were not, in Blake v. Noland (12 Wendell, 173). In that case, the plaintiff had destroyed the note willfully, and apparently' without any honest motive, and ' I do not see in the case, any considerable evidence of the original consideration, which was work and labor, independent of the note, and what was said when it was given. The case left much room to believe that the act was done fraudulently. In Atkinson v. Hawdon, the question arose upon pleading, and for aught that appeared, the alteration was made under an honest mistake of right. Perhaps that distinction should be adopted. It would be quite revolting to allow the plaintiff willfully and fraudulently to destroy the note and remit himself, and then use it as evidence of the original consideration; while an honest mistake, where it is obviously so, should not prejudice. To allow a holder the privilege of destroying his note and thus bringing himself to the original consideration, would put it in his power to acquire an advantage by wrongful suppression of testimony. The note is evidence of the true balance. The same remark would apply to any fraudulent, or, if you please, any unexplained alteration which avoids the note. It then ceases to be evidence for any purpose (Chitty, 212, a. ed. 1836). But there are certainly many alterations, ex parte, which have been holden innocent, and even available. One, as we have seen, is the filling up [243] a blank with a sum intended by the endorser; another may be the insertion of a name; another, the insertion of words of negotiability (Chit, on Bills, ed. 1836, p. 206), with other cases of the like character. Suppose in this case, the plaintiffs really believed the defendant intended the sum which was inserted, but the referees should differ from them, and think the original sum was intended; the alteration would'then stand upon a mistake of the fact. It would be very severe to say that the original debt should be forfeited. Ch. Justice Nelson observed, in Blade v. Noland, “The proof is, that the plaintiffs deliberately and voluntarily destroyed the note before it fell due; and there is nothing in the case accounting for, or affording any explanation of the act, consistent with an honest or justifiable purpose. Such explanation the plaintiff was bound to give affirmatively.”

But in any view, it seems difficult to maintain this report so long as the deputy sheriff’s evidence is in the case. The referees, in the absence of that might have thought differently as to the original balance. That testimony seems to affect every point found by the referees. Acting independent of that, and finding the original debt as it appeared to have been made out by the defendant himself; finding also that he intended to give his note for that debt, but did not by mistake, or that the plaintiffs honestly believed in such intent and mistake from the appearances, and made the alteration on a supposed authority, though none in truth existed in point of fact, I can hardly say' they are to be deprived of all remedy.

Report set aside.  