p. 42; Stone vs. Sprague, id., p. 509; Esmond vs. Van 1699. The destruction or cancellation of a written Extinction by cancel contract, or of the signature of the parties liable lation, etc. thereon, with intent to extinguish the obligation thereof, extinguishes it as to all the parties consenting to the act. NOTE.-See Gardner vs. Gardner (Ct. of Errors), 22 Wend., p. 526. Facts excusing compliance with contract, see Plate vs. Vega, 31 Cal., p. 383. A draft was given for purchase money under a contract that the vendor should keep the goods ninety days and then deliver them upon the payment of the entire price, less the draft, and before the time expired the purchaser notified the vendor that he could not comply with the contract, but would pay the draft, the vendor was held excused from keeping the goods.-Id. See, also, note to Sec. 1691, case of Winton vs. Spring, 18 Cal., p. 451. by ized 1700. The intentional destruction, cancellation, or Extinction material alteration of a written contract, by a party unauthor entitled to any benefit under it, or with his consent, alteration. extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act. NOTE." The intentional." An accidental alteration or destruction does not prejudice.-See Skip vs. Huey, 3 Atk., p. 93; Hornby vs. Matcham, 16 Sim., p. 325; Des Arts vs. Leggett, 16 N. Y., p. 582. Thus, where a creditor traced ink over the debtor's name which had become blotted and obscured, and in so doing mispelled it by mistake, this was held immaterial.-Dunn vs. Clements, 7 Jones Law, N. C., p. 58. "Destruction."-Blade vs. Noland, 12 Wend., p. 173; see Hinsdale vs. Bank of Orange, 6 id., p. 378. "Can cellation or material alteration."-Chappell vs. Spencer, 23 Barb., p. 584; Bruce vs. Westcott, 3 id., p. 374; Waring vs. Smyth, 2 Barb. Ch., p. 119; Nazro vs. Fuller, 24 Wend., p. 374; Maybee vs. Sniffen, 2 E. D. Smith, p. 1; Fay vs. Smith, 1 Allen, p. 477; Burchfield vs. Moore, 3 El. & Bl., p. 683; Warrington vs. Early, 2 id., p. 763; Cowie vs. Halsall, 4 B. & Ald., p. 197. An alteration which cannot possibly be material, does not vitiate.-People vs. Muzzy, 1 Denio, p. 239; Pequawket Bridge Co. vs. Mathes, 8 N. H., p. 139; Nichols vs. Johnson, 10 Conn., p. 192; Smith vs. Crooker, 5 Mass., p. 540; Langdon vs. Paul, 20 Verm., p. 217. "By a party entitled to any benefit under it." An alteration by a stranger does not affect the contract.-Rees vs. Overbaugh, 6 Cow., p. 746; see Malin vs. Malin, 1 Wend., p. 659. And where an alteration was made in the presence of the creditors, by an agent of the debtor, who believed that he had authority to make it, but in fact had not, it was held that the contract was not avoided thereby.-Van Brunt vs. Eoff, 35 Barb., p. 501. "Or with his consent." Consent is equivalent to an alteration by the party himself.-See Martin vs. Thomas, 24 How. U. S., p. 315; Waring vs. Smyth, 2 Barb. Ch., p. 119. "Extinguishes all." The whole contract is extinguished by a material alteration, however slight. See cases cited above. "The executory." An alteration does not divest an interest that has vested under a grant.-Smith vs. McGowan, 3 Barb., p. 404; Lewis vs. Payn, 8 Cow., p. 71; Chessman vs. Whittemore, 23 Pick., p. 231; Withers vs. Atkinson, 1 Watts, p. 236; Barrett vs. Thorndike, 1 Greenl., p. 73. "Obligations of the contract." It seems to be doubtful whether the payee of a note, who has lost his rights under it by an alteration, can recover upon the original consideration.-Clute vs. Small, 17 Wend., p. 237. It has been held that he may.-Atkinson vs. Hawdon, 2 Ad. & El., p. 628; but compare Alderson vs. Langdale, 3 B. & Ad., p. 660. It should seem that he ought not, for the note undoubtedly suspends the time of payment of the original debt until the note becomes due (Hart vs. Hudson, 6 Duer, p. 294), and under such circumstances the note would never become due. But where a note is altered by consent, and is void for want of a new stamp, the original debt may be recovered.-Sutton vs. Toomer, 7 B. & Cr., p. 416. "In his favor." Where there are two creditors having separate interests under a contract, an alteration by one of them does not prejudice the rights of the other. "Against the parties who do not consent to the act." An alteration does not dis- of 1701. Where a contract is executed in duplicate, Alteration an alteration or destruction of one copy, while the duplicate, other exists, is not within the provisions of the last prejudice. section. NOTE.-Lewis vs. Payn, 8 Cow., p. 71; same case, 4 not to 65 PART III. OBLIGATIONS IMPOSED BY LAW. SECTION 1708. Abstinence from injury. 1709. Fraudulent deceit. 1710. Deceit, what. 1711. Deceit upon the public, etc. 1712. Restoration of thing wrongfully acquired. 1713. When demand necessary. 1714. Responsibility for willful acts, negligence, etc. from 1708. Every person is bound, without contract, to Abstinence abstain from injuring the person or property of another, injury. or infringing upon any of his rights. NOTE. These rights are defined by the First and lent deceit. 1709. One who willfully deceives another with in- Fraudu tent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers. NOTE.-" With intent." An intent to defraud is an "Or risk." |