The statement of the case as made by the majority is accepted as correct. The finding of the jury that the words, "Pay $50.00 per month," were added to said note after its execution and delivery without the knowledge and consent of appellee, being supported by evidence is binding upon this court, and it is thought that, under the pleading of *Page 909 appellee, as to whether or not such alteration was a material alteration is a question of law and should be decided by this court from what appears within the four corners of said instrument. The note in full is as follows:
"$657.00. Clifton, Tex., Aug. 1, 1926.
"On or before October 1, 1926, after date, for value received, I, we or either of us, promise to pay to the order of Clifton Mercantile Company, six hundred fifty-seven dollars, at Clifton, Texas, with 10 per cent. interest per annum from date until paid, interest payable annually as it accrues, and in the event default is made in the payment of this note at maturity and it is placed in the hands of an attorney for collection, or suit is brought on same, then an additional amount of ten dollars as liquidated damages, ten per cent. on principal and interest and court costs, shall be added as collection fees. This is one of a series of notes of like tenor and effect, except as to the amount and dates of maturity, and it is agreed that the failure to pay any one of them at maturity shall mature all the others and make them payable at once. The drawer and indorsers severally waive protest, notice of protest and notice of non payment.
"Pay $50.00 per month. Tom Gillaspie.
"Meridian. Chas. D. Cabler."
"Brownsville.
The question here involved is: Did the addition of the words and figures, "Pay $50.00 per month," constitute a material alteration in said note? If so, then the judgment of the trial court is correct and should be affirmed, but, if not, then the Judgment of the trial court, as to the note, is wrong and should be reversed and rendered for appellant for the amount of its note. This question, it is thought, should be determined by the provisions of our Negotiable Instruments Act adopted by this state in 1919, and the construction of our appellate courts of said act and the decisions construing said acts by the appellate courts of other states which have adopted the same, or Negotiable Instruments Acts similar to ours. All of the states except about four have adopted a substantially uniform Negotiable Instruments Law, similar to our own. 8 C.J. 46; Commercial Rank v. Arden Fraley, 177 Ky. 520, 197 S.W. 954; L R. A. 1918B, 320. Section 125 of article 5939 of our Negotiable Instruments Law as applied to the question here involved, is as follows:
"Any alteration which changes * * * (3) the time or place of payment * * * is a material alteration."
Clearly, the clause in question does not change the place of payment. Does it change the time of payment? This is the exact question here involved. It will be observed the note is dated August 1, 1926, and recites:
"On or before October 1, 1926, after date, for value received, I, we or either of us promise to pay to the order of the Clifton Mercantile Company, six hundred fifty-seven dollars at Clifton, Texas," etc.
The above is the language of the makers of said note. Said language is contractual in it nature, and expressly and explicitly fixes the due date of said note as "on or before October 1st, 1926." The note is complete in every particular without the added clause, which is far separated from the explicit contractual language expressly fixing the due date, and has no connection, gramatically or otherwise with said part of said note. Said clause, "Pay $50.00 per month," does not purport to be the language of the makers of said note nor to he contractual in its nature, and cannot be so construed without very materially adding to said clause, which it is thought this court has no right to do in order to make said clause contractual and thereby hold said alteration material. Appellee sought to cancel said note, alleging as a ground for such relief that appellant had made a material alteration in same, in that, it had added to the note the words and figures, "Pay $50.00 per month." There is no pleading to authorize this court to supply or add words and thereby convert said meaningless clause into a promise or apparent contractual obligation. There was no contention that any words or figures that were in said note at the time appellee signed same were erased, changed, or obliterated. This being true, the burden was upon appellee to allege and prove such material alteration. McKenzie et al. v. Barrett,43 Tex. Civ. App. 451, 98 S.W. 229. Appellee did allege that said note was materially altered by appellant by its adding to said note the cause, "Pay $50.00 per month." Appellee should be required to stand upon the alteration alleged. As I view the case, this court, in passing upon the question here involved, is not at liberty to supply or add to the clause alleged to constitute the material alteration, but must consider the effect, if any, on the note of the addition of the very words added, and only the words added, and when thus considered, said clause clearly is not contractual, and if not contractual, then same in no way affected the liability of appellees, and was therefore immaterial. I have been unable to find any case involving the exact question here, but the following cases, it is thought, have a material bearing upon the question involved: Reed v. Watson (Tex.Civ.App.) 262 S.W. 178; Clem v. Chapman (Tex.Civ.App.) 262 S.W. 168; Mertz v. Fleming et al., 185 Wis. 58,200 N.W. 655; Washington County State Bank v. Central Bank (Tex.Civ.App.)168 S.W. 456; note to Burgess v. Blake, 86 Am. State Rep. 78; 2 C.J. p. 1211.
It is thought the judgment canceling the note should be reversed and judgment rendered for appellant for the amount of said note. *Page 910