I dissent. The plaintiff having purchased the note after it was due, took it subject to all defenses the defendants would have had *304against the payee, and stands in the same position that the range company would if it was plaintiff.
If this was an action wherein the. title to the range was in question then the reasoning of Justice Parker would be conclusive. For I concede that the agent had no right to make the sale for less than sixty-nine dollars, and the defendants, I think, must be held to have notice of the limitations upon his agency.
The range company could have repudiated the sale for less and have returned the note ; by retaining it they ratified the transaction.
The note and the indorsement upon it made at the time of signing the note and before its delivery, constitute together but one ' instrument.
The defendants can only be held liable upon the instrument signed by them and received by the agent, not upon one they did not sign or agree to, no matter whether the agent was authorized to accept such an instrument or not; as a matter of fact they did not, as the jury has found, become parties to such an instrument as the plaintiff claims was the only one the agent was authorized to receive.
The instrument sued upon is not the one signed and agreed to by the defendants. The defendants are not responsible for the change. They have had no opportunity to make any alteration themselves. There is no evidence as to the condition of the instrument when it came into the possession of the range company, and there is nothing from which we can infer that the change was made by the agent, and I do not think that we' have the right to assume that he made it.
But even if the agent did change it, the defendants’ liability is still no different; he was not their agent, and it is not the instrument they signed.
The evidence as to chemicals and the test made in court, I think, was competent.
The defendants had sworn to an indorsement upon the instrument, the instrument produced had none, and so far as appearances indicated, never had one upon it. The note so produced with no sign or mark that there had ever been any indorsement upon it, and nothing to show that anything had ever been removed from it, was something calculated to throw doubt upon the defendants’ story of the indorsement.
*305The evidence was competent as corroborative of the defendants’ testimony; it went to show that it was possible by the use of chemicals to remove an indorsement without injuring the fibre of the paper, and without leaving any apparent sign. Those facts are very material, for proof that an indorsement could not be removed without injuring the fibre of the paper, nor without leaving some trace, would have been utterly destructive of the defendants’ evidence as to there ever having been any indorsement upon the note; evidence, therefore, that it could be so done was competent as corroborative of their testimony. (Lindsay v. People, 63 N. Y. 143, 157.)
I can see no objection to making the test in court. I apprehend that the testimony of a chemist would be received to show that there are chemicals that will remove ink marks from paper without leaving any ink or stain and without injuring the fibre of the paper. Why not then receive an actual demonstration of that fact from any one able to make it ? The fact that the jury might think that the holders of the note might have used the particular chemicals used to make the experiment or demonstration upon the trial, is not an answer to the question as to whether such evidence is competent or material.
The judgment should be affirmed.
Putnam, J., concurred.
Judgment and order reversed and a new trial granted, costs to abide the event.