This was an action of replevin for a mare, brought before a justice of the peace, by Kountz, as guardian of Isaac Leedy, an insane person, against Hart. The plaintiff appealed to the Court of Common Pleas, where there was a verdict and judgment for the defendant.
*330The case is before us on the evidence. The following are the substantial facts, as gathered from the evidence. The mare in question belonged to Isaac Leedy, the plaintiff’s ward, and had been left by his wife in the possession of one Abraham Leedy. Hart wished to purchase her. Hurt and Abi ah am Leedy went to see the ifiaintiff about it, and it was agreed between the plaintiff and defendant that the plaintiff would sell the mare to the defendant for $10, payable on October 1, 1859, for which amount Hart was to execute his note to the plaintiff, with interest from date, (this was about February 1, 1859,) with good security, and the note was to be such as A braham Leedy should approve. Hart and A bra-ham Leedy then left. In a few days Ilart brought to Abra-'Jiain Leed:ifit&lilomissory note, made payable to the plaintiff, for the amount, payable at the time specified, signed by .the defendant and one John Hininlcert ■ The note did not waive the appraisement laws, nor did it bear interest. A bra-ham Leidy refused to take the note because it did not waive the appraisement laws, unless Ilart would satisfy Kountz. Hart then said he would make it draw interest from date, and procured pen and ink, and interlined, or Wrote on the face of the note, the words, “-with interest from date.” He then said if Kountz, when he returned home, was not satisfied with the note, he would return the mare in as good condition as she was then in. With this understanding Leedy took the note and let the defendant have the mare. In a week or two Kountz came home, and Leedy presented to him the note, and informed him of what had transpired. Kountz refused to receive the note, saying that the surety was not bound for the interest, and he would not take it; that Hart must execute another note, with surety, or give up the mare. The plaintiff immediately prepared a note to be executed by Ilart and his surety, according to the terms of the contract, waiving appraisement laws, and sent it, together with the other note, to the defendant, requesting him to. execute, with his surety, the new note, or return the mare. The defendant declined to execute the new note, because ,it waived the appraisement laws, but agreed to return the mare, stating that he had agreed to return her in as good *331condition as when he got her; that she was then a little lame, and he would keep her a few days until she got well, and would return her some day that week, which, however, was not done. A subsequent demand was also made for a return of the mare, which was not complied with.
P. O. Daily, for the appellee.Upon these facts, concerning which the evidence does nob appeal1 to be at all conflicting, it is difficult to see upon what ground the verdict and judgment can be sustained. Admitting that ITart was not required, by the terms of the contract, to execute a note waiving appraisement laws; still he has fallen far short of complying with it in another respect. When the alteration was made in the note, by inserting the words “with interest from date,” the surety upon the note was not present, and no authority appears for such alteration. The alteration changed the substance of the contract, and, undoubtedly discharged the surety from all liability thereon. Holland v. Hatch, 11 Ind. 497.
The note then stood simply as the note of the defendant, without surety. Abraham Leedy was not authorized, in any manner, to take a note without surety, but with such surety as he should approve. Again, the defendant agreed, upon receiving possession of the mare, to return her unless the note should be accepted by the plaintiff.
It is clear to our minds, that the title to the mare never passed to the defendant; and, therefore, that a new trial should have been granted.
The appellee assigns cross errors, upon the ruling of the Court upon motions made by him to dismiss the appeal, and to correct the record. These several motions were based upon affidavits which are not in the record; and therefore we must presume that the rulings were correct. The affidavits, to be sure, are copied by the clerk into the transcript) but that does not make them a part of the record; which can only be done by bill of exceptions, or order of the Court. Kirby v. Cannon, 9 Ind. 371.
Per Curiam. — The judgment is reversed, with costs. Cause remanded for a new trial.