We cannot agree with the court below; that the alteration of the promissory note, if made, would be immaterial. A. note payable to bearer is essentially a different contract from a note payable to order.
The court below found that the alteration was made by a trespasser, against the will of the respondent. There is certainly no such preponderance of evidence against the finding, as would warrant us in disturbing it. And this finding of fact would have supported a conclusion of law, that the note was not altered; that it remained as written, as much as if it had been merely obscured by an accidental blot of ink. It wan *378spoliation by a stranger, not alteration to charge the bolder. 1 Green. Ev., § 066, and cases cited in note.
The most serious difficulty in the case is the mistake of the complaint in not pleading the note as originally written. This might have been taken for adoption or ratification of the alteration. But, on reflection, we cannot think that we would be justified in coming to such a conclusion. As a variance, founded on mistake, it was amendable on trial, and must be considered amended. We have the less difficulty in so holding, because the identity of the note as made is fully established by the findings of the court below.
The very able and learned counsel of the appellants criticised the findings with great astuteness. But, though there is some inaccuracy of language in them, there is nothing in the record to warrant this court in disturbing them, or the judgment going upon them.
By the Court. ■ — -The judgment of the court below is affirmed.
A rehearing having been granted, the appeal was finally disposed of at the August term, 1878.