I. The action is brought on the following contract:
“Hastings, Adams Co., Neb., March 12, 1875.
“In consideration of fifty 10-56 bushels of prime flax seed this day furnished me by Oliver & Co., of Hastings, Adams county, Nebraska, the receipt of which is hereby acknowledged, to be by me sown on a certain farm by me held as a homestead, situated on section ten, township eight, range ten west, in the county of Adams, state of Nebraska, I promise to pay them, or to their order, on *443or before first day of October, 1875, sixty-two 30-56 bushels of prime flax seed. In case of the failure of the crop to pay them the said sixty-two 30-56 bushels of prime flax seed at said time, I hereby agree to pay them or their order, on demand, the sum of one hundred and thirty 45-100 dollars, with interest at the rate of twelve per cent per annum from the time said seed should have been delivered. I further agree to sow said advanced seed on suitable and well prepared ground the coming season and to carefully harvest the same, and to sell them or their order my entire crop of flax seed, except fifty bushels, to be by me raised, at ten cents per bushel and freight less Chicago price day of delivery. All of said seed to be delivered well cleaned, in prime order, on or before the first day of October, 1875, to said Oliver & Co., or their order, at their warehouse at IIastings} Adams county, Nebraska. This contract to bear interest at the rate of twelve per cent per annum from and after the first day of October, 1875.
“ In witness whereof, I have hereunto set my hand and seal the day and year first mentioned.
In presence of, L. P. Hawley, [seal]
B. E. Boyer.
“ $5.00 commission to be charged on the fifty bushels reserved.”
The plaintiffs claim a balance due on the contract of $25.48 and $5.00 as commission on the fifty bushels reserved.
The answer of the defendant admits making the contract, but alleges that “ said plaintiffs have made a material alteration in the written conditions of said written instrument by writing and adding thereto the following condition therein in words and figures as follows, to-wit: ‘ $5 commission to be charged on the fifty bushels reserved;’ that the flax seed was foul and unfit for seed, and was *444mixed with and was about one-fourth mustard seeds, and other obnoxious weed seeds, to defendant’s damage in .the sum of $200.” Defendant denies that he promised to pay $5.00 commission on the fifty bushels reserved.
The plaintiffs in their reply denied the new matter contained in the answer.
On the trial of the cause the court instructed the jury: “ If you find from the evidence in the case that the said contract has been changed in a material respect by the plaintiffs since its execution and delivery, without the knowledge and consent of the defendant, you are warranted in finding for the defendant.”
“If you find from the evidence in the case that the change in the contract was made as charged in the answer, in law I charge you that they cannot recover thereon.”
To which instructions the plaintiffs duly excepted. The jury returned a verdict for the defendant for the sum of $45, on which judgment was rendered.
In Palmer & Orton v. Largent, ante, page 283, this court held that a memorandum written under a negotiable instrument and qualifying it, is to be taken as a part of the contract and the fraudulent removal of such a memorandum would vitiate the instrument, even in the hands of an -innocent purchaser. But where the words alleged to have been removed were, “ this note is given upon condition,” there being nothing to show what the condition was, it did not vitiate the instrument, as they were entirely immaterial; but it is the duty of the court to determine whether such an alteration is material or not, and it is error to submit such question to the jury.
“ An alteration is an act done upon the instrument by which its meaning or language is changed. If what is written upon or erased from the instrument has no tendency to produce this result, or to mislead any person, it is not an alteration. The term is, at this day, usually applied to the act of the party entitled under the deed or *445instrument, and imports some fraud or improper design on his part to change its effect.” 1 Greenleaf Ev., Sec. 566. In this case there is no alteration of the contract. The memorandum complained of is not, and does not purport to be any portion of the contract. It is at most a mere memorandum. It is for the court, not the jury, to determine whether an alteration is material. The court, therefore, erred in submitting this question to the jury.'
In Randall v. Roper, 96 Eng. Com. Law, 82, the defendant had sold the plaintiff barley, warranting it to be “ Chevalier seed barley.” The plaintiff, relying upon the warranty, re-sold it with a similar one. The barley proved to be an inferior variety and not “Chevalier barley,” in consequence of which plaintiff’s vendee obtained a poor crop. It was held that the plaintiff was entitled to recover the amount to which he had become liable to the vendee.
In Passinger v. Thorburn, 34 N. Y., 634, the defendant sold cabbage seed under an express warranty that it was the seed of a variety known as “ Bristol cabbage,” which it proved not to be. The damages were held to be the value of a crop such as should have been produced by the seed if it had conformed to the warranty, deducting the expense of raising the crop and the value of the one in fact raised.
But I think no case can be found in which consequential damages have been recovered where a party, as in this case, had knowledge of the inferior character of the seed before sowing the same; in such case, the party furnishing the seed is not liable for damages resulting to either the crop or the land in consequence of the use of such inferior seed.
The judgment of the district court is reversed and the cause remanded for further proceedings.
JUD&MENT REVERSED.