The plaintiff agreed to take the second note for the first one, upon the sole condition that the second one should be secured. The condition failing, the plaintiff was at liberty to treat the second note as a nullity, or as mere security for the payment of the first note, and pursue the defendant upon that. Jaffrey v. Cornish, 10 N.H. 505; Johnson v. Cleaves, 15 N.H. 332; Clark v. Draper, 19 N.H. 419, 423; Smith v. Smith,27 N.H. 244, 253; Foster v. Hill, 36 N.H. 526, 528.
The alteration of an indorsement of a payment on the note from erroneous to true figures, if material as an alteration of a written receipt for the payment of money and would have vitiated the note as evidence on which to support the action, was ratified, and any objection to it was waived by the defendant's giving a second note and ten dollars for the full amount of the first one without objection, and with a promise of security. Humphreys v. Guillow, 13 N.H. 385. The plaintiff could retain the ten dollars as part payment on the note, and her failure to return it with the second note did not prevent her from rescinding the contract by which the second note was received, nor from treating it as security for the original note, nor from recovering in the action upon that.
Exceptions overruled.
SMITH, J., did not sit: the others concurred.