Exhibit 19 can be immediately eliminated from further consideration since it does not purport to be a contract or other transaction between plaintiff and defendant.
Exhibit 20 is a contract but it is not the contract in litigation. Moreover, an alteration which will discharge a contract must have been made by a party having a right thereunder or a right to compensation for its breach. An alteration made by a third party who is a stranger to the immediate transaction, without the knowledge or consent of the parties thereto, does not effect a discharge.
Here the immediate transaction was Exhibit 20 -- the agreement of trust between defendant by its president and Muntz as trustee. Plaintiff was a stranger thereto, and Muntz expressly denied that he knew of or consented to the adding of the secretary's name in attestation of this agreement. No alteration was made of any contract between defendant company and the Phoenix Mutual Life Insurance Company or between the defendant company and the plaintiff. We think a material alteration of the documents mentioned above is ineffective to deny recovery to plaintiff upon the promissory note which is the subject of the instant action.
Fee of Expert Witness
The defendant presented a motion to compel plaintiff to reimburse it for a $ 500 fee paid to a handwriting expert engaged to prove that plaintiff wrote the name 'Cyril T. Garvey' on the resolution (Exhibit 19), together with reasonable counsel fees.
The motion avers that in August, 1955, plaintiff in his deposition and in response to an interrogatory swore that he did not write Garvey's name on the resolution. Inspection of the documents reveals the truth of these averments.
At pre-trial conference, in the presence of the expert and under some prompting by the court, it was stipulated that plaintiff wrote the Garvey signature not only on the resolution but also on the trust agreement, although his counsel maintained that plaintiff had no recollection of doing so, and that the fact was of no importance since the exhibits were certified copies. Notwithstanding the stipulation, the expert remained in court two days.
We do not think defendant can be criticized for preparing itself to prove that the plaintiff wrote the Garvey names. Its trial counsel, who is Mr. Garvey, considered it most vital that this fact be incontestably established. But defendant pointed only to Rule 37(c), Fed.Rules Civ.Proc., 28 U.S.C.A., to sustain its demand. That rule, as we understand it, is not applicable to answers made in depositions and to interrogatories under Rules 26 and 33, but only to requests for admissions under Rule 36. Therefore, the motion will be denied.
Judgment will be entered in favor of plaintiff and against the defendant for the sum of $ 9,000, with interest from December 31, 1954; costs to be divided equally.
An appropriate order will be entered.