LANCASTER LAW REVIEW. HASSLER, J., on rule for a new trial, see 31 LAW REVIEW, 124.) Verdict for plaintiff of $2,233.33 and VOL. XXXII.] FRIDAY, AUG. 6, 1915. [No. 40 judgment thereon. Supreme Court. Berks County Trust Company v. Lyte, The cancellation of the name of a bank printed on a promissory note showing where it is payable and the substitution therefor of the name of another bank in writing is a material alteration and voids the note unless made with the assent of the party liable, which, on suit, is a question for the jury, the burden of proof being on the plaintiff. In a suit by the holder of a joint and several promissory note on which the name of the bank where payable has been changed, it is not sufficient for the plaintiff to show, that the maker who was not sued in sending the note to the plaintiff bank, had accompanied it with a letter stating that he had changed the note, which was a renewal, not having a proper blank, and that the alteration was in the same handwriting as the rest of the note, without showing that the change was made before the other maker the defendant signed it, and the note should not have been admitted in evidence, but if admitted a verdict should have been directed for the defendant. In such case, the fact that the defendant Defendant appealed, assigning for error [1-2] the admission in evidence of the affidavit of defense and the note, and [3-8] the answers to the defendants' points and a portion of the charge, as follows: "1. Under the law and evidence, the verdict must be for the defendant. Answer. Refused." [3] ment in a note is a material alteration, "2. A change as to the place of pay and unless shown to have been made before the note was signed by the defendant, there can be no recovery. Answer. We affirm that point, and also say to you that if it was made, even after it was signed, with the knowledge and consent of Mr. Lyte, the alteration is explained and the plaintiff would be entitled to recover." [4] 3. The proof submitted by the plaintiff is not sufficient to show that the change from the Fulton National Bank to the Berks County Trust Company as the place of payment was made before Dr. E. O. Lyte signed the note in suit. Answer. We refuse that point. It is a matter for you to say from the testimony whether it is sufficient to show that the alteration was made before it was signed by Dr. Lyte or with his knowl admitted in his affidavit of defense that "he edge and consent." [5] signed the note in suit" will not avail the plaintiff, where the copy of the note sued on as set forth in the statement is not that of an altered note. There can be no recovery, at least without amendment, on a note that differs from the copy in the statement. Appeal No. 190 of January Term, 1914. by defendant, Mary McJ. Lyte, Admr. of E. O. Lyte, deceased, from judgment of C. P. of Lancaster Co. to Dec. T., 1912, No. 59, on a verdict for plaintiff. Reversed. The suit was brought by the payee and holder against one of the makers of a joint and several promissory note on which the name of the payee bank had been changed. (For opinion of the court below, 1 4. The admission by Dr. E .O. Lyte in the affidavit of defense that he signed the note sued upon, is not an admission that he signed it after the alteration as to the place of payment was made. Answer. We refuse that point. It is a matter for you entirely to say whether his admission is that he signed it before the alteration was made, signed this note, and whether he signed before the alteration was made and afterwards consented to this alteration. You will remember, as I have called your attention to the fact, that in his affidavit of defense he admits signing the note set forth in plaintiff's statement, or the note in suit. and that note was one of the same date and same amount, made payable to the Berks County Trust Company, the same The note offered in evidence was at variance with the copy attached to the statement, and should not have been admitted. as this note is; that it was the joint note | fendant authorized or assented to the of Mr. Lansinger and himself. In fact, alteration. it was the same in all particulars as the note that is here for your consideration. That is, the note that he admits he signed was the same in all particulars as the note that has been offered in evidence before you." [6] 5. If the jury believe that the place of payment of the note in suit was altered from Fulton National Bank to the Berks County Trust Company after the note was signed by E. O. Lyte, then the verdict must be in favor of the defendant. Answer. We affirm that point, unless you find that the alteration was made after he signed it with his knowledge and consent, that he authorized or consented to the alteration. If you find he did, then the plaintiff would be entitled to a verdict." [7] "Now it is for you to say whether under that testimony you find that this alteration was made before Mr. Lyte signed it, or made with his knowledge and consent. If it was, the plaintiff is entitled to your verdict for the face value of the note, viz.: $2,000.00, I think it is, with interest from the first of April, 1912." [8] Coyle & Keller, for appellant. The alteration was material and voids the note unless made with the assent of parties liable. Act of May 16, 1901, P. L. 194, Secs. 124, 125. Gettysburg National Bank 2. Chisolm, 169 Pa., 564. The burden of showing this is on the holder. Simpson . Stackhouse, 9 Pa., 186. Hartley v. Corboy, 150 Pa., 23. There was no evidence that the de Herrlein . City of McKeesport, 247 Stevens v. Graham, 7 S. & R., 505. H. Edgar Sherts, for appellee. The note was a renewal and the evidence offered was amply sufficient to establish that the alteration was made before the signature. Gettysburg Nat'l Bank . Gage, 4 Pa. Super., 505. Dutten's Estate, 205 Pa., 244. There was no variance between the copy filed and the note offered in evidence. Carpenter . Portland Cement Co., 211 Pa., 551. Yardly Nat'l Bank . Vansant, 214 Pa., 250. July 3, 1915. Opinion by MR. JUSTICE MESTREZAT. This is an action of assumpsit brought by the holder against one of two makers of a joint and several negotiable promissory note. The note was made payable to the order of the makers, and by them endorsed and delivered to the holder, the Berks County Trust Company, the plaintiff in this action. The copy of the note sued on and set out in the statement is as follows: "READING, PA., MAY 12, 1909. $2,000.00. On demand after date we, or either of us, promise to pay to the order of ourselves at The Berks County Trust Company Two Thousand 00/100 Dollars, without defalcation, value received. J. W. Lansinger. The note is endorsed: "J. W. Lansinger, E. O. Lyte." The defendant, Lyte, pleaded non assumpsit, and filed an affidavit in which he admits that he signed the note in suit," and sets up as a defense certain matters which the court, J. W. Lansinger. E. O. Lyte. Credit the Drawer 9998." Endorsed: "J. W. Lansinger, E. O. Lyte." The defendant objected to the offer for the reason that the note disclosed on its face a material alteration and did not agree with the note, and was not the note in suit of which a copy was set out in the plaintiff's statement. The objection was sustained by the court until the plaintiff explained the alterations. This it attempted to do by showing that the alteration was in the same handwriting as the rest of the note, that Lansinger in sending the note to the plaintiff had accompanied it by a letter in which he stated that he had changed the note in suit because he did not have a Berks County Trust Company note, that the note in suit was a renewal of a former note, and that the defendant in his affidavit admitted that he had signed the note in suit. Following this testimony, the note was admitted in evidence. The learned court instructed the jury that the burden of proof was on the plaintiff to show that the alteration of the note was made before it was signed by the parties, or that it was done with their knowledge and consent, and that it was for the jury to determine whether, under the testimony, the alteration was made before Mr. Lyte signed the note, or made with his knowledge and consent. We think the evidence was insufficient to meet the burden imposed on the plaintiff of showing that the alteration changing the place of payment of the note was made before Mr. Lyte signed it or with his knowledge and consent, and that, therefore, the court should have declined to admit the note in evidence, and having admitted it, should, as requested, have directed the jury to return a verdict for the defendant. The act of May 16, 1901, Sec. 125, P. L. 194, provides: "Any alteration which changes the time or place of payment . is a material alteration "; and Sec. 124 provides: "Where a negotiable instruassent of all parties liable thereon, it is ment is materially altered without the avoided except as against a party who has himself made, authorized or assented to the alteration, and subsequent indorsers." It is conceded that the alteration in the note is material, and that before there could be a recovery the plaintiff was required to show, as the act requires, that the defendant made, authorized or assented to the alteration. Until the plaintiff met this burden imposed upon it, the court should not have admitted the note in evidence. There was no evidence tending to show the condition of the note at the time Mr. Lyte signed it. The fact that the alteration is in the same handwriting as the rest of the note and that Mr. Lansinger made the alteration because he did not have a Berks County Trust Company note, certainly does not tend to show that the change of place of payment was made before Mr. Lyte signed the note or that he knew or consented to the change. It is conceded that Lansinger wrote the note and that he made the change in the place of payment. It cannot be left to the jury to conjecture that the change was made before Mr. Lyte signed it, the onus being upon the plaintiff to show that the change was made prior to its execution by Mr. Lyte. The testimony that the note in suit was given as a renewal of another note payable at the Berks County Trust Company was also without probative force as showing when the alteration was made or that it was with the knowledge or consent of the defendant. The fact that it was a renewal note does not show, nor tend to show, when Mr. Lansinger altered the note. He may have made the change before, or he may have made it after Mr. Lyte signed the note, but it would only be a guess by the jury for them to find either way on such testimony. In filling up the blank spaces in the note in the first instance, Lansinger may not have noticed that it was payable at the Fulton National Bank of Lancaster, and having discovered this fact just before mailing the note to the holder and after it had been signed by both parties, he may have made the erasure and substituted the Berks County Trust Company as the place of payment. The fact that the note in suit is a renewal of a former note does not show its condition when it was executed by Mr. Lyte. In his affidavit of defense, the defendant "admits that he signed the note in suit." It is strenuously contended that this is an admission by the defendant that the alteration was made before he signed the note. This contention, however, overlooks the language of the admission, which is that the defendant admits he signed "the note in suit." The Practice Act of May 25, 1887, P. L. 271, provides that "the plaintiff's declaration in ... the action of assumpsit . . . shall consist of a concise statement of the plaintiff's demand... which, in the action of assumpsit, shall be accompanied by copies of all notes . . . upon which the plaintiff's claim is founded." The copy of the note in suit which the defendant admits he signed is, as the act requires, set out in the statement, and on its face discloses that it is not the note that was offered and received in evidence. There is a material difference, as declared by the Negotiable Instruments Act, between the note in suit, as shown by the copy contained in the statement, and the note which was submited to the jury and on which the plaintiff recovered. It is immaterial that the two notes are joint and several, of the same date, for the same amount, and were signed by the same parties. The Practice Act requires that a copy of the note sued on shall be set out in the statement, and it necessarily follows that, at least without an amendment, there can be no recovery on any other note, although it be of the same date, same amount, and executed by the same parties. The similarity of the two notes has no tendency to show when the alteration was made in the note put in evidence, or whether the defendant, if he signed that note, knew or assented to the alteration. The evidence was insufficient to show that the alteration was made, authorized or assented to by the defendant, and, therefore, the note was void as to him and there could be no recovery upon it. It was error to admit the note in evidence and subsequently to refuse to direct a verdict for the defendant. Judgment reversed. H. Frank Eshleman, for defendant and rule. Willis G. Kendig, contra. July 3, 1915. Opinion by HASSLER, J. The plaintiff and defendant own adjoining lots of ground, along the turnpike road in East Lampeter Township. near this city, upon each one of which is erected a house. Upon the lot of the defendant, according to the finding of the jury, was a natural water-course, which conducted all or much of the surface water which collected upon his land out to the turnpike, and prevented it from flowing upon plaintiff's When the defendant erected the house on his lot, he changed the grade of it. so that it is now, in some places, two feet, according to plaintiff's witnesses, | higher than the plaintiff's land, and, according to the defendant, a foot and a half above it. This change of grade has changed the natural water-course, so that the surface water no longer flows to the turnpike over defendant's land, but is diverted, and now flows upon the land of the plaintiff. In the application for a new trial, it is urged by the defendant that we erred in not affirming the second and third points submitted. These points are as follows: fendant from his liability. We could not instruct the jury that the defendant could avoid liabilty for diverting the water by giving the plaintiff the right to do what she had the right to do without his consent, namely, erecting a fence on the line of her property. There was no evidence that she lowered her property. She dug out four inches of earth, to make room for four inches of cinder, which has been put in place, so that the lot remains at the same level now as before. There was no evidence to justify the affirmance of these points. The damages proven were $21.00, and we instructed the jury that the verdict could not exceed that amount. They found a verdict for $50.00, and it must be reduced to conform to the evidence. We, therefore, discharge the rule for a new trial, if the plaintiff, within ten days of the filing of this opinion, remits all of the verdict in excess of $21.00; otherwise, the rule is made absolute. 2. If the jury believe, from the evidence, it was agreed between the plaintiff and the defendant that, if the defendant allowed the plaintiff to cut down vertically on the line between them, grading, leveling and lowering her lot below that of defendant, and agreed that, if the plaintiff erected on that line a retaining fence as a lateral support of defendant's land, and to keep said water complained of on defendant's land, that defendant would allow said water to remain on his land, and to drain southward to the turnpike-and that, in pur- Tax-collector-Bond-School tax-Acts suance thereof, the plaintiff did build such retaining wall or fence, and it has proved insufficient to so guide said water, that the plaintiff is guilty of negligence, which has caused her injury and cannot be recovered. "3. That the plaintiff, by erection of a board retaining wall between her lot and the higher lot of defendant, thereby caused the water (which occasioned her injury) to be collected and thrown on her in a quantity which otherwise would. naturally have spread out and flowed over on her property gradually and naturally, and not have caused the injury, the defendant is not liable." We do not think that either of these points should have been affirmed. In erecting the fence, plaintiff acted within her rights. If it proved insufficient to keep the water in its natural course, it would not excuse the act of the defendant in diverting it therefrom. It was an attempt on the plaintiff's part to avoid. or prevent injury caused by the act of the defendant, and if it did not succeed in doing so it did not relieve the de Commonwealth v. Klugh, et al. (No. 1). of June 25, 1885, P. L. 187; June 6, 1893, P. L. 333, and May 18, 1911, P. L. 309, Sec. 550. The sureties on the general bond given by a tax-collector under the Act of June 6, 1893, are not liable for his failure to pay over school taxes collected by him. The collection of school taxes is, under Sec. 550 of the School Code of May 18, 1911, not a duty imposed upon him as tax-collector, but a right or duty which he can take upon himself by giving, a special bond. Township School District. C. P. of LanRule to assess damages for Pequea caster Co. January Term, 1915, No. 134. H. Frank Eshleman, for rule. H. Edgar Sherts and John M. Groff, contra. July 3, 1915. Opinion by HASSLER, J. The undisputed facts in this case are as follows: H. M. Klugh was elected tax-collector of Pequea Township, this county, on February 16, 1909. His term, having been extended, expired on the first Mon |