The note for $250, when issued by the defendant, was qualified by a condition annexed to it, and referring to it in such mode as to show that it was intended to remain attached to it so long as it was in force, and probably until it was detached by consent of the defendant. The payment of the note was then dependent upon a contingency, and therefore the note was not negotiable. Fletcher v. Blodgett, 16 Vt. 26; Fletcher v. Thompson, 55 N.H. 308, and cases there cited.
Independently, therefore, of the effect produced upon the note by a material alteration, it is enough for this case that the action cannot be maintained in the name of this plaintiff. When the note was issued by the defendant it was not negotiable, and could not be made so without his consent. It appears to have been altered by tearing off the condition after it came into the possession of the original payee. It is not, therefore, the note which the defendant gave. He has a right to say non in hoec foedera veni — I did not make this bargain. It is plain enough, in reason as well as in authority, that the indorsee in this case is in no better condition than the original payee. The maker of a negotiable note is bound by that note as he makes it, and against an innocent indorsee his defences are much restricted; but it is only the note which he actually made, and not a different note, which binds him in this way.
The case of Johnson v. Heagan, 23 Me. 329, is an authority to show that the removal of the written condition was a material alteration. It is not necessary, perhaps, to consider any further the effect of this alteration in avoiding the note. The cases Master v. Miller, 4 Term 320, 2 H. Bl. 141, Burchfield v. Moore, 25 Eng. L. Eq. 123, Gardner v. Walsh, 32 Eng. L. Eq. 162, Davidson v. Cooper, 11 M. W. 778, 18 id. 343, Powell v. Divett, 15 East 29, seem to show conclusively that the effect of such an alteration, made after the acceptance of the bill or giving the note, would be not only to avoid the note in the hands of an innocent indorsee, but also, if fraudulently done, to discharge the debt. Gibbs v. Linabury,22 Mich. 479; Benedict v. Cowden, 49 N.Y. 396.