on finding that the vendor is unable or unwilling to remove Contracts

it (a).

reserving option to rescind in

Where the condition was that, in case of any objections certain or requisitions being delivered with which the vendor should events. be unable or unwilling to comply, the vendor should have the option to rescind the contract, "notwithstanding any attempt made to remove or comply with any such objection or requisition," it was held that the vendor might exercise the option of rescinding, notwithstanding attempts made to answer the requisitions, provided it was exercised within a reasonable time (b). Under conditions similar to those above mentioned the option may be exercised after the day specified for the completion of the contract (c). But where the vendor, upon being applied to, expressly refused to rescind the contract, insisting that he could make a good title and that he would enforce the contract, it was held that he could not afterwards elect to rescind under such condition (d).

A lease of mines, reserving a royalty rent for every ton of coal raised, contained a proviso that the lease should be void if the tenant ceased working for two years; it was held that the lease was voidable only at the option of the lessor, and that the tenant could not avoid it by his own default (e). A lease contained a proviso that if the rent should be in arrear for twenty-one days, or if any of the covenants should be broken, the term thereby granted should be void, and it should be lawful for the landlord to re-enter; it was held that a breach of covenant rendered the lease voidable only at the option of the landlord, and that he waived his right to avoid it by a subsequent receipt of rent (ƒ). So, a proviso in a lease for years that, if the rent shall be unpaid for forty days, the lease shall be void, does not make it voidable by the lessee upon default in payment of the rent, but only

Gardom v. Lee, 3 H. & C. 651; 34 L. J. Ex. 113; Morley v. Cook, 2 Hare, 106; Page v. Adam, 4 Beav. 269; M'Culloch v. Gregory, 1 K. & J. 286, 295.

(a) Duddell v. Simpson, L. Rep. 1 Eq. 578; 35 L. J. C. 451.

(b) Vestry of Shoreditch v. Hughes, 17 C. P. N. S. 137; 33 L. J. C. P. 349.

(c) Ib.; Hoy v. Smythies, 22 Beav.

510.

(d) Gardom v. Lee, 3 H. & C. 651; 34 L. J. Ex. 113.

(e) Doe d. Bryan v. Bancks, 4 B. & Ald. 401; and see Roberts v. Davey, 4 B. & Ad. 664.

(f) Arnsby v. Woodward, 6 B. & C.

519.

makes it voidable against him (a). By an agreement for a tenancy the tenant was to erect a shop-front, and if he did not within three months, the agreement was to be null and void; it was held to be voidable in such event at the election of the lessor only (b).

By a deed of composition and release between the defendant and his creditors, the defendant covenanted, amongst other things, to insure his life for £1000 for three years for the security of his creditors, with a proviso that in case he should make default in such insurance the deed should be utterly void to all intents and purposes; it was held that upon such default the deed was voidable only at the option of the creditors, but that the plaintiff, a creditor, having accepted a benefit under it after such default, could not afterwards avoid it (c).

CHAP. IV. SECT. II. ALTERATION OF WRITTEN INSTRUMENT.

by one

sent of the

other.

433

Alteration Ir a deed is altered in a material point by the obligee or party with Covenantee, without the consent of the other party, as by an out the con- interlineation, addition, erasure, or by drawing a pen through a line or a word, the deed is thereby avoided (d); and the same rule extends to contracts in writing not under seal (e). The object of this rule is said to be to deter persons from attempting fraud by means of alterations in documents (ƒ).

If a deed or written contract is altered in a material point

(a) Rede v. Farr, 6 M. & S. 121.

(b) Doe d. Nash v. Birch, 1 M. & W. 402.

(c) Hyde v. Watts, 12 M. & W. 254; and see Hughes v. Palmer, 19 C. B. N. S. 393; 34 L. J. C. P. 279.

(d) Pigot's case, 11 Co. Rep. 27 a ;

Sheppard's Touchstone, 68, 69.

(e) Master v. Miller, 4 T. R. 320; 5 ib. 367; Davidson v. Cooper, 13 M. & W. 343, 352; Mollett v. Wackerbarth, 5 C. B. 181, 194.

(f) Master v. Miller, 4 T. R. 320, 329, 345.

by a stran.

ger.

by a stranger to the contract, without the knowledge of the Alteration. promisee, but whilst the instrument is in his possession or under his care, the instrument is thereby avoided (a). This rule is founded on the principle that a party who has the custody of an instrument made for his benefit is bound to preserve it in its original state (b).

An alteration made by a stranger, whilst the document is not in the care and custody of the party claiming the benefit of it, does not affect its legal validity. An award having been made and signed ready for delivery, the umpire before delivery altered the sum awarded; it was held that the alteration of the award by the umpire after his authority was at an end was the same as if it had been made by a stranger, and that the award remained good for the original sum (c).

alterations.

What are material alterations will appear from the follow- Material ing decisions :-An alteration in a sale note of goods made by the seller, without the consent of the buyer, adding the words, "such part as may be damaged to be taken at such allowance as shall be settled by two experienced brokers," was held to be a material alteration which avoided the contract (d). A sale note of goods by sample was altered by the buyer, without the consent of the seller, inserting after the word sample the words "of their own manufacture;” it was held that, whether those words had reference to the bulk of the goods or to the sample only, the alteration was material and avoided the contract (e).

A policy of insurance on a ship and cargo in general terms was altered, after the underwriter had signed it and without his consent, by the insertion by the insured of certain specific goods; the alteration was held to be material and to avoid the policy (ƒ). So, where the insured, after subscription by the underwriter and without his consent, altered the time of warranty of sailing of the ship insured, it was held

(a) Pigot's case, 11 Co. Rep. 27b; Davidson v. Cooper, 11 M. & W.778; 13 ib. 343.

(b) Davidson v. Cooper, 13 M. & W. 343,352; Burchfield v. Moore, 3 E. & B. 683, 687.

(c) Henfree v. Bromley, 6 East, 309.
(d) Powell v. Divett, 15 East, 29.
(e) Mollett v. Wackerbarth, 5 C.
B. 181.

(f) Langhorn v.

330.

Cologan, 4 Taunt.

Material

alterations.

that the alteration was material, and the underwriter discharged from the contract (a); and where a policy of insurance for a voyage to Portsmouth was altered, with the consent of some of the underwriters, by inserting after Portsmouth the words "or Weymouth," it was held that the alteration avoided the policy against an underwriter who was ignorant of the alteration (b).

An alteration of a guarantee not under seal, by the addition of a seal to the signature of the defendant, so as to make it purport to be the deed of the defendant, was held to be a material alteration which vitiated the instrument (c).

The alteration of the date of a bill of exchange is a material alteration which, if not made with the consent of all parties, avoids the bill (d). So, the alteration of a joint promissory note into a joint and several promissory note, without the consent of one of the makers, was held to avoid it against him (e). The alteration of a joint and several promissory note by the addition of another maker was held to be material, and to discharge a previous maker, without whose consent the note was so altered (f). The addition of a memorandum written in a corner of a promissory note without the consent of the maker, "interest to be paid at £6 per cent. per annum," was held to be a material alteration which vitiated the note (g).

The addition to the acceptance of a bill of exchange of the words "payable at A.," without the consent of the acceptor, is a material alteration and avoids the bill; for it purports that the bill may be presented at a place which the acceptor did not intend (h). For the same reason, the alteration of a bill accepted payable at B. & Co.'s, by substituting E. & Co.'s for B. & Co.'s, without the consent of the

(a) Fairlie v. Christie, 7 Taunt. 416.

(b) Campbell v. Christie, 2 Stark. 64. (c) Davidson v. Cooper, 11 M. & W. 778; 13 ib. 343.

(d) Master v. Miller, 4 T. R. 320; and see Alderson v. Langdale, 3 B. & Ad. 660; Atkinson v. Hawdon, 2 A. & E. 628; Langton v. Lazarus, 5 M. & W. 629.

(e) Perring v. Hone, 4 Bing. 28.

(f) Gardner v. Walsh, 5 E. & B. 83, overruling Catton v. Simpson, 8 A. & E. 136; and see Gould v. Coombs, 1 C. B. 543.

(g) Warrington v. Early, 2 E. & B. 763.

(h) Burchfield v. Moore, 3 E. & B. 683; 23 L. J. Q. B. 261; Cowie v. Halsall, 4 B. & Ald. 197; Calvert v. Baker, 4 M. & W. 417; and see Crotty v. Hodges, 4 M. & G. 561.

acceptor, was held to be material and to discharge the acceptor (a). But the addition to the acceptance of a bill, made by the acceptor himself at the request of the payee, of the words "payable at A." was held not to be so material an alteration as to make it a new bill requiring a new stamp, because such alteration did not restrict the acceptance (b).

An alteration of a bill drawn and accepted payable in France, by the holder inserting a fixed rate of exchange for the payment, was held to be such a material alteration as avoided the bill (c). An alteration of a blank indorsement into a special indorsement in favour of the holder is not material and does not avoid the instrument (d).

alterations.

On the other hand, an alteration which is wholly immate- Immaterial rial does not affect the validity of the instrument (e); as in the following cases -In a bond made to the plaintiff, who was sheriff of the county of Oxford, but was not so described in the bond, the words "Sheriff of the county of Oxford" were added to the name of the plaintiff, after the delivery of the bond; it was held that the alteration was in a point not material, and therefore did not avoid the instrument (f). The defendant gave a bond to the plaintiff conditioned to pay £100 by six equal payments of £16. 13s. 4d. on the 3rd October in every year until the full sum of " one pounds" was paid; the bond was left in the custody of a third person, who had drawn it, and who afterwards without the knowledge of either party interlined the word "hundred " between "one" and "pounds;" it was held that the alteration was immaterial and did not avoid the bond, because it did not alter the manifest meaning of it (g). An alteration of an instrument by correcting the Christian name of a person, which had been incorrectly stated in the instrument, was held immaterial and not to vitiate the instrument (h). The defendant was tenant to the plaintiff of a farm from

(a) Tidmarsh v. Grover, 1 M. & S. 735.

(b) Walter v. Cubley, 2 C. & M. 151. (c) Hirschfield v. Smith, L. Rep. 1 C. P. 340; 35 L. J. C. P. 177.

(d) Clark v. Piggott, 1 Salk. 126; 12 Mod. 193; Hirschfield v. Smith,

L. Rep. 1 C. P. 340, 353.

(e) Sanderson v. Symonds, 1 B. & B. 426.

(f) Pigot's case, 11 Co. Rep. 26 b. (g) Waugh v. Bussell, 5 Taunt. 707. (h) Trew v. Burton, 1 C. & M. 533.