Wardlow v. List.
A material alteration in a note, made in accordance with an agreement between the maker and payee, does not avoid the note as to the maker, although the change was made sometime after the agreement and without knowledge on the part of the maker that the agreement had been made effective by the actual al leration of the note.
*415Error to the District Court of Brown County.
List, as the administrator of the estate of Elias L. Abbott, deceased, brought his action in the court of common pleas against Benjamin Wardlow, and his petition contained two causes of action. The single question now presented in the case arose on the first cause of action, which was founded upon a promissory note,- of which the following is a copy:
$800.00 September 27, 1871.
Twelve months after date I promise to pay to the order of E. L. Abbott the sum of three hundred dollars at the ______________________, with eight per cent, interest. Value received.
Benjamin Wardlow.
Wardlow in his answer averred that a material alteration of the note had been made.
The court below, at the request of the defendant, found the following to be the facts: On November 3, 1873, a payment of $46 was made, and credited on the note. On the 3d of June, 1874, there was another payment of $30, for which credit was given. After a third payment of $183 had been made, but not credited on the note, Abbott went to Wardlow’s house, taking with him the note. He and Wardlow’s daughter then and there calculated how much was then due on the note, with interest at eight per cent. Wardlow was present, and Abbott told him that he would charge but eight per cent, interest. Abbott and Miss Wardlow did not agree in their computations of interest. Abbott left the note with Wardlow, so that- his son might review their figures and calculations. Wardlow retained possession of the note for more than one year, when, at the request of Abbott, he returned it to him.
After this Wardlow’s wife went to Abbott’s house, and told him that she came to see whether the third payment had been credited upon the note, and whether he had fixed it so that they would have to pay but eight per cent. He *416then gave a credit of $193 on the note — the third payment —as of date of April 10, 1880, and told her he would change the note to eight per cent. He did not change the note while she was present. Afterwards the note, while in the possession of Abbott, was altered so as to bear eight per cent, interest instead of ten per cent. Mrs. Wardlow represented to Abbot that she was acting on behalf of her husband when she inquired about the credit and the change of the rate of interest. The court also found the fact to be that Wardlow did not authorize his wife to represent him, and that he did not know of the change until after Abbott’s death.
On this cause of action the court of common pleas gave judgment in favor of Abbott’s administrator, but allowed interest only at the rate of six per cent. The district court affirmed this judgment.
Thomas & Thomas, for plaintiff in’ error.
J. H. Marshall and Moore Harding, for defendants in error.
Nash, J.
The facts, as found by the court of common pleas, show that long before the alteration was made in the note, Abbott and Wardlow had agreed that the note should bear eight instead of ten per cent, interest. The note was changed so as to comply with this agreement. In making the change Abbott simply carried into effect the understanding existing between himself and Wardlow. It was competent for the maker and the payee of the note to so agree. The facts that Wardlow was not present when the change was made, and that he did not know that the note had been thus altered until after Abbott’s death are not material.
This is not such an alteration as has been held to avoid the note, as against the maker, in many ably considered cases in this staté.
Judgment affirmed.