SECTION XIII.-Of Allerations. WHETHER or not there be an alteration is a question of fact for the jury, and the court should decide upon the effect of the alteration, so far at least as its materialism is concerned. It has indeed been held error for the court to leave the question of materiality to a jury.1 There is no doubt that any parties that make a bargain may agree to terminate the bargain, whether it be oral or written. And if a policy of insurance be cancelled by agreement of the parties, or, what is the same thing, by the act of one and the assent of the other, and in whatever way this cancelling is affected, the policy is thereby wholly annulled. So also it is certain that if the parties agree not to annul the bargain, but to vary it, they may do this to any extent and in any way they choose. But upon the questions, what is sufficient evidence of assent, and what is the effect of attempted alteration without assent, there has been much litigation and diversity of opinion.2 Sheldon v. Benham, 4 Hill, 129; Dana v. Fiedler, 2 Kern. 440. In Remon v. Hayward, 2 A. & E. 666, it is said, that a question arising at Nisi Prius, before Lord Denman, from the obscurity of the handwriting, what the words of a written instrument produced in evidence really were, his lordship decided the question himself, and refused to have it put to the jury. 1 "Whether erasures and alterations had been made in the deed or not, was a question of fact proper to be referred to the jury; but whether the erasures and alterations were material or not was a question of law which ought to have been decided by the court." Trimble, J., Steele's Lessee v. Spencer, 1 Peters, 560. And accordingly the instruction in the court below referring the question of materiality to the jury, as well as the fact of alteration and erasure, was not sustained. To the same effect, see Stephens v. Graham, 7 Serg. v. Rawle, 505. The court below had directed the jury to find for the plaintiffs, if in their opinion the alteration was immaterial, for defendant if material. The court on error reversed the judgment, and held this direction to be wrong. It was a question of law. Materiality of an alteration is for the court. But whether made by consent, or with fraudulent motives, must be settled by the jury. Powers v. Jewell, 2 N. H. 543, 1 Arn. 55. A material alteration in the terms of the policy, to which the underwriters have duly assented, when inoperative from the omission of a stamp, is yet effectual to avoid the policy. Although the want of a legal form prevents it from being received as evidence of a new contract, it is yet regarded as a complete expression of the will of the The general rule as to alterations of policies of insurance is the same with the universal rule of the law of contract, namely, that a material alteration of a written contract made by one party, without the assent of the other, avoids the contract.1 parties to abandon their former agreement. 1 Duer, Ins. 87; 1 Arn. Ins. 62; French v. Patton, 9 East, 351. Lord Ellenborough said that "the altered policy, though ineffectual as an instrument to sue on, was effectual to do away with the former agreement, which was thereby abandoned," p. 355; and Le Blanc, J., p. 357, asks "how the court can enforce an agreement, after the parties themselves, upon the very face of the same instrument, have declared that it is not their agreement, and have actually written another and a different agreement in the place of it." Mr. Duer doubts the propriety and justice of this decision, and thinks the true ground of the decision was that a different construction would lead to frauds upon the revenue. 1 Duer, Ins. 87. 1 And this, whatever may have been the object or motives of the party in making the change, and in whatever mode it is effected, whether by an erasure, an interlineation, or an addition in a blank space. And there would seem to be no reason why it would not produce the same effect when the alteration is made by words written in the margin. But this has been doubted. Richardson, J., in Forshaw v Chabert, 6 Moore, 386. In this case the language of Lord Ellenborough is cited with approbation, that "the plaintiff's own act had made, as far as he could make, the policy speak a different language from what he now insists that it does, and he must take the consequences." The policy was on ship and goods from Cuba to Liverpool, with liberty, &c., and the assured, after the subscription of the policy, inserted in the body of it the words, "with leave to call off Jamaica," to which the defendant did not, though other underwriters did, agree, without increased premium. This was held a material alteration and to avoid the policy as to defendant. And this principle is applicable to all instruments alike. Master v. Miller, 4 T. R. 320; Chitty, Contr. (5th Am. ed.) 783 et seq. Even when made with the expectation of getting the. underwriter's consent. See Langhorn v. Cologan, 4 Taunt. 330; Fairlie v. Christie, 7 Id. 416; Laird v. Robertson, 4 Brown, P. C. 488; Campbell v. Christie, 2 Stark. 64. See Entwisle v. Ellis, 2 H. & N. 549; 1 Phill. Ins. 76, § 113. But an alteration by the insurers, without the consent of the insured, has no effect whatever. Kennebec Co. v. Augusta Ins. & Banking Co., 6 Gray, 204, where an open policy was given on "property on board vessel or vessels," &c., "as per indorsements to be made." Subsequently an agreement was made by the plaintiffs with the agents of the defendants in Boston to insure certain cotton at and from New Orleans to Boston, and to take the risk of fire on land at New Orleans. Some of the cotton was there burned. After the news reached Boston, the agents made the indorsements on the policy, but added a qualification, which had not been agreed upon, and which would have prevented a recovery. Held, that the agents had no power to alter the terms of the contract, and that the subsequent qualification, not being part of But in the first place to have this effect it must be material; for if it be immaterial, either from its total want of value or importance,1 or because it only expresses something already included by legal construction in the policy, it would not avoid the policy.2 Even the contract, was void, and defendants were therefore liable. In the United States there is no restriction on the right of the parties to alter their original contract at any time and in any manner they may deem expedient; but in England, although certain alterations are permitted to be made without the addition of a stamp, those that seem the most material, if unstamped, are wholly invalid. The reasons for this rule are plain, and rest on public policy. A material alteration "destroys the policy," by destroying its identity. And out of this reason grows the next rule, or rather simply another aspect of the same rule, that where the alteration is immaterial, either because unimportant, or because it adds nothing to the implications of law in the construction of the policy, the contract retains its identity, and consequently its legal force. See next note. 1 In the cases of Sanderson v. M'Cullom, 4 J. B. Moore, 5, and Sanderson v. Symonds, 1 Brod. & B. 426, 4 J. B. Moore, 42, the policy contained a liberty to the vessel insured "to sell, barter, and exchange goods at any of the ports to which, under the terms of the policy, she might proceed during her stay." The insured, fearing the original words might be insufficient, added the words “and trade” after the sentence given above. Some of the underwriters assented to it by signing their initials; but, among others, defendant did not. It was held that all were still liable, because the alteration was immaterial and the contract unchanged, and that defendant would have been liable had no such words been introductd. Falmouth v. Roberts, 9 M. & W. 469. See also Hatch v. Hatch, 9 Mass. 311, per Sewall, J.; Smith v. Dunham, 8 Pick. 246 ; 1 Greenl. Ev. 633; Pequawket Bridge v. Mathes, 8 N. H. 139; Nichols v. Johnson, 10 Conn. 192; Smith v. Crooker, 5 Mass. 540, per Parsons, C. J. But see contra, Chitty, Cont. (5th Am. ed.) 784. Chitty refers to Pigot's case, 11 Coke, 27 a, and to Shep. Touchst. 89, where it is laid down that, "if the obligee himself alter the deed, although it is in words not material, yet the deed is void." And see Jackson v. Malin, 15 Johns. 293; Wright v. Wright, 2 Halst. 175. But Pigot's case was an action on a bond, and the language in Touchstone is based on Pigot's case. 2 An alteration of a written instrument by the insertion of a word which the law would supply will not annul the contract, although interlined by the party holding the instrument, without consent. See Hunt v. Adams, 6 Mass. 519; Smith v. Crooker, supra; Hatch v. Hatch, supra, 1 Greenl. Ev. § 567, and cases cited. Chief Justice Parsons, in delivering the opinion of the court in Hunt v. Adams, says: "As to the alteration, it is an old rule that any alteration, whether material or not, in an instrument, made by the party to whom it is given, shall avoid it, unless made by the consent of the party who executed it. But in a simple contract which is merely evidence of a promise, an immaterial alteration, however made, not at all affecting the terms of the promise, seems not to be within the same principle of deeds, which, from then, however, if fraud were alleged it might be evidence of fraud, and fraud annuls a policy as it does every contract.1 2 It has been said, "where the alteration is not material it will not vitiate the policy in toto, but, in such case, if some of the underwriters have consented to the alteration, after the policy is executed, and others refuse, those who consent make the altered instrument their own; but those who do not, remain liable on their original contract." But we do not quite understand this, for if the alteration be not material, how can those parties who are bound by it be placed in a different condition from those who are not so bound? On the other hand, if the alteration be such that it lessens, or enlarges, or otherwise varies the obligations, does not this circumstance prove it to be material?3 the alteration, may not be the deeds of the parties; while a similar alteration in a written simple contract might leave it complete evidence of the same contract." 66 Where the policy was originally filled up on the Three Sisters at and from Cadiz and Seville to Liverpool," and, after it had been signed by the underwriters, the broker inserted the words, "Tres Hermanas or " and "both or either," Lord Ellenborough held the defendants liable. The mere calling the ship by an English name did not amount to a warranty of nationality. No harm, therefore, could arise by inserting "Tres Hermanas" in the policy, that being a mere translation of the "Three Sisters." And since the ship had the option of going both to Cadiz and Seville or not, as it might suit the exigencies of the adventure, the words "both or either" gave her no additional liberty. The legal operation of the instrument is in no degree affected. Clapham v. Cologan, 1 Campb. 382. 1 1 Phill. Ins. 76; Nunnery v. Cotton, 1 Hawks, 224, per Taylor, C. J. But if the alteration be fraudulently made by the party claiming under the instru ment, it does not seem to be important 1 Arn. Ins. 55. 31 Arn. Ins. 55. The same statement, in the same form, is made by Mr. Duer (1 Ins. 80). "When the alteration in a policy is wholly immaterial, when the words introduced are merely explanatory, and do not at all enlarge or vary the legal import of the original terms to which they apply, the contract retains its identity, and consequently its legal force; the assent of the underwriters in such a case is wholly unimportant. Those who assent are bound by the policy as altered, those who dissent by its original form." The ex D It is also necessary to its avoidance of the contract, that the alteration be made by a party, or by some other person with so much consent or co-operation of the party to the contract as to make him responsible for it.1 planation follows: "But the liability of both classes is precisely the same, and the distinction between the two contracts, where a suit is commenced, consists, not in the nature or extent of the relief, but solely in the form of declaring." Sanderson v. Symonds, 1 Brod. & Bing. 426. See also Sanderson v. M'Cullom, 4 J. B. Moore, 5. 1 Nichols v. Johnson, 10 Conn. 192. An alteration by a stranger, though material, does not avoid the instrument. The court say that the doctrine of Pigot's case, 11 Co. Rep. 27, and also of the case of Markham v. Gonaston, Cro. Eliz. 626, that "when any deed is altered in a point material by the plaintiff himself, or by any stranger, without the privity of the obligee, be it by interlineation, addition, erasing, or, by drawing a pen through a line, or through the midst of any material word, the deed thereby becomes void," has been, with good reason, supposed to have been derived from the ancient technical forms of pleading, and from principles applicable to proferts. 3 T. R. 151; 4 T. R. 321. But whatever may have been the origin of this principle, it has been much relaxed, if not entirely subverted, in later times, so far as it extends to the acts of strangers. As early as the reign of Charles II., it was decided that a deed was not made void the seal of which had been torn off by a little boy. Palm. 413. And in Jackson v. Malin, 15 Johns. 293, it is said by Platt, J., "that a material alteration, though made by a stranger, without the privity of the party claiming under it, renders the deed void, is a proposition to which I am not ready to assent." In Rees v. Overbaugh, 6 Cow. 746, the Supreme Court of New York held, that if a stranger tear a seal from a deed, it shall not destroy it." The court in the case of Nichols v. Johnson, after referring to these and other cases, say: "The reasons controlling the decisions in these cases seem entirely applicable to the present, and wholly inconsistent with the old doctrine of Pigot's case, in its application to the act of strangers to the deed. Indeed it can hardly be conceived, if a deed or other instrument in writing is not rendered inoperative by either a mistaken alteration, or its loss, or even entire destruction, how it can be by an unauthorized intermeddling of a stranger." See also Lewis v. Payne, 8 Cow. 73. In a recent English action on a charter-party the opposite doctrine seems to be held. Croockewit v. Fletcher, 1 H. & N. 893. This was an action by an owner of a vessel against the charterers for refusing to take the vessel; the defendants pleaded, that whilst the agreement was in the possession of the plaintiff, it was, without the knowledge or consent of the defendants, altered in material particulars (setting them forth), that the alteration was not made in correction of any mistake or to further the intention of the parties, by reason whereof the agreement became void. It appeared in evidence that after the charter-party was signed, the agent of the plaintiff made the alterations complained of, and stated the fact to the defendants when he handed the instrument to them, and on their saying that |