Citations
- 8 Cal. App. 768
Full opinion text
BURNETT, J.
The action is upon a bond given to secure the payment by the Mercantile Refining Company to the plaintiff of the consideration for oil furnished by the latter to the former. Plaintiff had judgment, from which and the order denying their motion for a new trial certain of the sureties have appealed.
The main controversy in the cause grows out of the fact that an alteration was made in the bond after it had been signed, but before it was delivered to and accepted by plaintiff. The change was made by one of the sureties—not an appellant—who added the word “severally” making the bond in form “joint and several” instead of “joint” as before the additiojn.
Assuming that the aforesaid interpolation changed the legal effect cjf the instrument, and therefore constitutes a material alteration, and that it was made without the knowledge or conseni of the appellants, then the rule is as stated by them: “It either rendered the instrument absolutely null and void if the changes were made with the knowledge, express or implied, of the plaintiff, or else left the bond, as it was originally execute’¡a, a joint obligation, if the words inserted in it were interim ,d by a stranger to the bond, or without any fault or without; the knowledge of the plaintiff.”
In Walsh v. Hunt, 120 Cal. 53, [52 Pac. 117], the supreme court