Tranter v. Hibbard. election. Nor need he make his election until the time when the promise is to be performed; but, after that day has passed, without election on his part, the promisee has an absolute right to the money, and may bring his action for it." To the same effect, see 2 Chit. Const. (11th Ed.) p. 1207; 25 Am. & Eng. Enc. Law, p. 909, and authorities cited. The Kentucky cases seem to support the same doctrine. See Huston's Ex'r v. Noble, 4 J. J. Marsh. 130; Jouett v. Wagnon, 2 Bibb, 269; Colyer v. Hutching's Ex'rs, Id. 404; Johnson v. Butler, 4 Bibb, 97. Moreover, the certificates which Tranter averred his readiness and willingness to deliver in satisfaction of the note did not represent the stock which Hibberd agreed to receive in satisfaction of his note. Hibberd agreed to accept fifty-five shares of the stock of the oil company, and this agreement means stock of the oil company as it then existed. It appears from the answer and certificates filed there with that the capital stock of the company at that time was $100,000, and that before the date of maturity of the note it had been inflated to $300,000. It does not appear whether the alleged increase of stock was valid, or within the power of the company; whether its charter definitely fixed its capital stock (in which there would be no implied authority to increase it); or whether, under the charter, there was any liability of private property for corporate debts which would be increased by an increase of stock. In any event, when Hibberd agreed to become a stockholder it was an agreement to subject himself to the terms of the existent contract between the stockholders, and to be bound by the law under which the corporation was organized. On the other hand, he did not agree to enter into a contract established upon a different basis of capitalization, or that his Vol. 108-18 Tranter v. Hibbard. rights, when he should become stockholder, should be affected by a corporate action to which he could not be a party and in which he could have no voice. This brings us to a discussion of the alleged alteration. Was the insertion of the word "fixed,"-which, by the demurrer, is admitted to have been made after the execution and delivery of the note,-following the date at which the note was made payable, a material alteration? Considerable time and space has been occupied by appellant in discussing the effect of a material alteration. Upon this point there is no question. The authorities are overwhelming, and practically unanimous. "Any change in the terms of a written contract which varies its original legal effect and operation, whether in respect to the obligation whch it imports, or to its force as a matter of evidence, when made by any party to the contract, is an alteration thereof, unless all the other parties to the contract gave their express or implied consent to such change. And the effect of such alteration is to nullify and destroy the altered instrument as a legal obligation, whether made with fraudulent intent or not." 2 Daniel, Neg. Inst. (4th Ed.) section 1373. It seems to be uniformly held that an alteration in the date of payment is a material alteration. In this State in some of the earlier cases,-as in Johnson v. Bank, 2 B. Mon. 311,-it was held that any alteration in a deed or note, whether material or immaterial, would vitiate the instrument. But this doctrine has not been adhered to in the later cases. In Lisle v. Rogers, 18 B. Mon. 528, in an opinion by Judge Simpson, the court concedes "the correct doctrine to be that an alteration, to avoid such instrument, must be material; and such seems to be the tendency of modern decisions on the subject." In Duker v. Franz, 7 Bush, 275, it was said, in an opinion Tranter v. Hibbard. by Judge Lindsay: "It seems to be the correct doctrine that an alteration of a note after its execution and delivery will render it void in case said alteration is to any degree material; and, if the true date of the note sued on, was 1868, and it was altered to 1869, it can not be doubted but that such alteration was material." In that case Judge Lindsay said: "We agree that the holder of the note has no right to make an alteration to correct a mistake, unless to make the instrument conform to what all parties to it agreed or intended it should have been; but this much he can do without destroying the legal efficacy of the writing." In Jones v. Insurance Co., 1 Metc. 64, the court, through Judge Duvall, cited approvingly 2 Pars. Cont. 226, to the effect that, "if the alteration does not vary the meaning of the instrument, or does not affect its operation, there is no good reason why it should make the instrument void,"-citing, also, Railway Co. v. Bacon, 15 Pick. 239; Langdon v. Paul, 20 Vt. 217. In Phillips v. Breck, 79 Ky. 467, it was said: "The alterations in the paper do not change its legal sense, and are, therefore, not material." In Thacker v. Booth (Ky.) 6 S. W. 460, it was held that the insertion in a note for purchase money of the words, "Lien to hold until paid in full," was not a material alteration, and did not affect the payor's liability. A number of Kentucky cases are cited on behalf of appellant, but in each instance the alteration changed the legal effect of the instrument. The note in question here is a non-negotiable promissory note, which has never been plac ed upon the footing of a bill of exchange. It does not come within the description given in section 483, Kentucky Statutes, of notes which are, by the statute, "placed on the same footing as foreign bills of exchange," to wit, "promissory notes payable to any person or to a corporation, and Tranter v. Hibbard. payable and negotiable at any bank incorporated under any law of this Commonwealth, or organized in this Commonwealth under any law of the United States, which shall be indorsed to and discounted by the bank at which the same is payable, or by any other of the banks in this Commonwealth as above specified." "Only those instruments which are negotiable by the law merchant, or those which are placed upon the same footing by statute, and are, strictly speaking, commercial instruments, are entitled to grace," Daniel, Neg. Inst. (4th Ed.) section 620. The case of Strader v. Batchelor, 8 B. Mon. 168, recognizes the doctrine that the allowance of days of grace is a commercial usage under the law merchant, applicable only to commercial paper, viz., bills of exchange, or domestic or foreign orders, and such paper as is, by statute, placed upon the same footing. In Coleman's Ex'r v. Tully's Adm'r, 7 Bush, 72, where the question was one of the measure of diligence necessary to charge the assignor of a non-negotiable promissory note, payable at a fixed day after date, the day fixed in the note is recognized as the date of the maturity of the note, without grace. As, therefore, the note in question was not commercial paper, it was not entitled to grace. The date of its maturity was October 3d, or, as that date fell upon Sunday, on the Saturday before; and the insertion of the word "fixed" after the date of maturity had no effect to change the time when the note actually became payable, and was not a material alteration, so as to vitiate the instrument. Nor, in our opinion, does the alleged purpose with which the alteration was made cut any figure upon this question. If the alteration were material, the purpose with which it was made might be material upon the question of whether the payee had any right of recovery in any form of action; but, as the change was immaterial, Tranter v. Hibbard. the purpose is equally so. But appellant contends that it was a negotiable piece of paper,-that is, could have been negotiated, because, being payable to order, and at a bank by law authorized to discount it, it would have been placed on the footing of a foreign bill of exchange by indorsing and discounting it to the bank. McCormack v. Clarkson, 7 Bush, 519. But the note never was discounted, and therefore never became entitled to days of grace. It might as well be contended that, because the note might have been discounted, the payor was entitled to the fiveyears bar of the statute of limitations applicable to bills of exchange, though the note was never placed upon that footing. Appellant argues that there is a local custom among the banks of Covington to grant three days of grace for the payment of a note payable in bank, without reference to the question of whether the note has been discounted. This custom is not alleged. Local customs as to days of grace must be alleged and proved. Goddin v. Shipley, 7 B. Mon. 575; Caldwell v. Dawson, 4 Metc. 121; Huston v. Peters, 1 Metc. 562. For the reasons given, the judgment is affirmed.* |