
    *Newell v. Mayberry.
    November, 1831.
    [23 Am. Dec. 261.]
    (Absent Brooke. J.)
    Pleading and Practice — Variance between Allegations and Proof. — Declaration in assumpsit on a written agreement, takes no notice of a note subjoined to the agreement, limiting its continuance to a day certain; the agreement offered, in evidence on the general issue, has such note subjoined thereto: Held. this is a fatal variance between the agreement laid in the declaration and the agreement offered in evidence; and the agreement is not admissible evidence, unless It appear that the note was subjoined, without the plaintiffs knowledge or consent, and so was no part of the agreement.
    Contracts. — Agreement between M. and N. that if N. can get possession of a runaway slave belonging to M. before a certain day, N. shall have the slave at a stipulated price, and that the agreementshaii continue in force only till that day; N. gets possession of the slave, after the appointed day. and continues to hold him: Held, M. may maintain an action for the slave, but not for the stipulated price.
    Same — Alteration—Effect  — if a written agreement not under seal, be altered by the party claiming under it in a material part: Held, he can never recover upon the agreement so altered, nor can he avail himself of the contract in its original and trne form: there is no distinction between deeds and other written instruments, in this respect.
    Assumpsit by Mayberry against Newell, in the circuit court of Botetourt. The declaration alleged, in substance, that a written agreement was made by and between Maj'berry and Newell, and signed by New-ell, on the 2d July 1816, whereby it was agreed between the parties, that Newell should give out that he had purchased a slave named Lewis from Mayberry, or had exchanged with him a slave named Reuben for Lewis, and should try by all means in his power to take Lewis; and when taken, Newell was either to keep him, and settle with Shepherd for the price of him, or deliver him to Mayberry, at Newell’s option ; and if Newell kept him, no deduction was to be made for taking him; but if he delivered him to Mayberry, he was to receive 20 dollars for his trouble: that Mayberry had purchased the slave Lewis of Shepherd, lor 621 dollars, and the slave, at the time of; the contract, had absconded from May-berry’s service: that Newell did regain possession *of the slave Lewis on the 20th July 1816, and elected to keep him, and to pay Shepherd the price of him; and had ever since and still claimed, under the agreement, and held the slave, as his own property, and refused to take 20 dollars tendered to him for his trouble, and to restore the property to Mayberry; and jret Newell did not, and would not, pay Shepherd the above mentioned price of the slave, and Mayberry had been compelled to pay the same to Shepherd by reason whereof Newell became liable to pay Mayberry the said sum of 621 dollars, and being so liable, in consideration thereof assumed to pay the same to him. Yet Newell had not paid him the same, but the ° same to pay him hitherto always had failed and refused &c. Newell pleaded the general issue. Verdict and judgment for Mayberry, for 621 dollars, with interest from the 10th November 1816.
    There were six bills of exceptions filed to opinions of the circuit court in this case: it is only necessary to notice three of them, the second, fourth and sixth.
    The second stated, that Mayberry offered in evidence at the trial, the written agreement mentioned in the declaration, which was in these words:
    “Memorandum of agreement made this 2nd day of July A. D. 1816, between T. Newell and T. Mayberry. Said Newell is to give out that he has purchased negro Lewis, or exchanged with him for negro Reuben, and to try all means in his power to take said Lewis, and when taken said Newell is either to keep him and settle with Shepherd for the price of him, or to deliver him up to said Mayberry at his option, that is, Newell’s; if he keeps him, no deduction for taking him, and if he delivers him up to Mayberry, then he is to receive 20 dollars for his trouble. And the said parties bind themselves on their honour, that neither of them will ever divulge or communicate this agreement to any person whatever, either directly or indirectly, except Job Moore — '(signed) T. Newell. This agreement to be in force until 12th July.”
    ^Whereupon Newell’s counsel objected to the reading of this paper in evidence, on the ground that it was variant from the instrument described in the declaration, in which no mention was made of the note at the foot of the agreement limiting it to the 12th July; and though it was therein averred that Newell regained possession of the slave on the 20th July, yet there was no allegation that the agreement had been extended afterwards beyond the 12th July. B'ut the court, — being of opinion, that the variance was not such as should prevent the paper from being given in evidence to support this declaration, that if Newell had intended to take advantage of the variance, he ought to have done so by way of plea, to which Mayberry might have had an opportunity to reply, and that Newell could not take advantage of the variance by way of objection to the evidence, — overruled the objection, and permitted the paper to be read in evidence to the jury.
    The fourth bill of exceptions, after setting out the written agreement again in hcec verba, stated, that Newell’s counsel moved the court to instruct the jury, that, as it appeared by that instrument, that the agreement was to be in force only until the 12th Julyil816, if they should find that Newell did not get possession of the slave till after that day, they ought to find a verdict for him, in this action ; because, in such case, Mayberry would have been no wise bound to permit Newell to retain the slave as his own property, and Mayberry would have had an action to recover the slave himself or his value, but could not maintain an action on this agreement. But the court refused to give the instruction. ^
    The sixth bill of instructions, repeating the agreement in hsec verba, stated, that Newell’s counsel moved the court to instruct the jury, that if it should find from the evidence, that the agreement had been altered, after it was executed, by Mayberry himself, without Newell’s consent, whether in a material or immaterial part, — or that it had been altered by a stranger, without New-ell’s consent, in a material part,- — in either case, the jury ought to find for New-ell. And, fthereupon the court instructed the jury, that if it should find from the whole evidence, that the agreement had been altered, since the execution of it, in any material part, without Newell’s knowledge and consent, either by Mayberry or any other by his procurement, then the agreement ought to be wholly disregarded by the jury, and it ought to find for Newell, unless the contract should be substantially proved by other evidence; but, if the jury should find, that the agreement had in fact been altered, whether in a material or immaterial part, but had not been so altered by Mayberry himself, or with his consent, or by his procurement, in such case the jury ought to disregard the altered parts only, and find accordingly.
    To these opinions Newell’s counsel excepted, and appealed from the judgment to this court.
    Leigh, for the appellant: Johnson for the appellee.
    
      
       Alteration of Instruments — lihect. -The alteration of an agreement or any written instrument if made by an obligee in a material matter without the assent of the obligor destroys the agreement. Yeager v. Musgrave, 28 W. Va. Ill, citing Meu'ell i>. Mayberry, 3 Leinli 250, also a large number of other cases In other states. To the same effect the principal case is cited in Dobyns v. Rawley, 78 Va. 511: Batchelder v. White, 80 Va. 10?. See monographic nme on “Contracts” appended to Huders v. The Board of Public Works, 1 Graft. 364; Art. “Alteration of Instruments” in 3 Am. & Jiing. Enc. Daw-fad Ed.) ISO.
      
    
   TUCKER, P.

I am of opinion, that the words, this agreement to be in force until the 12th July, if underwritten at the time of the contract, or afterwards and before that date by the mutual consent of the parties, did constitute a part of the contract between them, and a most material part of it, since it limited (as I conceive) the right of purchase on the part of Newell, to the 12th July. Until that date he had a right to keep the slave, if he chose to do so, under the contract, and pay Shepherd for him. But after that date, he had no such right. If he detained him, he did not detain him under the contract, but of his own wrong, for which he was responsible in another form of action, but not in this. The declaration, therefore, having set out the contract as indefinite, and the contract being in fact limited, the variance was fatal, in this action, upon the trial of the general issue. If, indeed, Mayberry had offered proof, that these words were not subjoined by the parties as part of the contract, and that they were neither added by himself nor by any other at his instance or witn his connivance, then the *paper should have gone to the jury, with an instruction, that if it believed such evidence it should disregard those words; in which case, the agreement would have corresponded with the declaration. I am, therefore, of opinion that the circuit court erred in the points stated in both the second and fourth exceptions.

The court also erred in the opinion set forth in the sixth exception. The materiality of an alteration is, I take it, matter for the decision of the court; and, moreover, if it had appeared, that the alteration was made by Mayberry, or any other by his procurement, then he could never recover upon this contract, nor could he be permitted to establish it by any other evidence, or even to avail himself of the contract according to its original and true character. iTr the principle long since established as to bonds, Pigot’s case, 11 Co. 27, is extended, by recent decisions, to other instruments, upon the principle, that no man shall be permitted to take the chance of gain, by the commission of a fraud, without running the risk of loss in case of detection. Master v. Miller, 4 T. R. 320, 1 Anst. 226, 2 H. Black. 11, S. C. Powell v. Divett, 15 East, 29.

The other judges concurring, judgment reversed, verdict set aside, and the cause remanded for a new trial.  