Fontaine v. Gunter , 31 Ala. 258 ( 1857 )

STONE, J.

— It is settled in England, by a well-considered and uniform current of decisions, that any alteration of a bill of exchange, in a material part, by which the liability of the parties to be charged is increased, avoids the instrument, unless it be shown that such alteration was assented to by those parties whoso liability is thereby increased. Further, that if a bill of exchange appear on its face to have been so altered, the onus rests on the person asserting rights under it, of showing that the alteration was made before the bill was executed, or that it was assented to by the parties to be bound thereby. — Johnson v. Duke of Marlborough, 2 Stark. 313; Henman v. Dickinson, 5 Bing. 183 ; Bishop v. Chambre, 3 Car. & P. 53; McMicken v. Beauchamp, 2 Miller’s La. Rep. 290 ; Knight v. Clements, 8 Ad. & El. 215; Addison on Contracts, 1085 ; Bailey on Bills, 98-9; Chitty on Contracts, 679; Livingston v. Butler, 2 B. & P. 283.

There are some American decisions, which conflict with this principle, and hold that a mere alteration or erasure of a bill of exchange, without more, does not cast on the plaintiff the onus of explaining such alteration. — President and Directors of Cumberland Bank v. Hall, 1 Halst. 215 ; Rankin v. Blackwell, 2 Johns. Cas. 198. This last case was materially shaken, if not entirely overruled by Jackson v. Osborn, 2 Wend. 555.

Messrs. Cowen & Hill, in their notes to Phillips on Evidence, say, “It is agreed by all the cases, that when the alteration appears to be suspicious on its face, and is not duly noted; as if the paper have been cut close, or a mutilated figure be left, or the ink differ, or the handwriting be that of a holder interested in the alteration, &e., the onus lies with the party who claims that the alteration was genuine.” — See edition by Van Cott, part 1, 462, and authorities cited; Thompson v. Armstrong, 7 Ala. 256.

Without determining, at this time, whether we will adhere to the English rule as above declared, there can he no question of the correctness of the rule last above stated. Let us submit the hill of exchange sued on in this case to this test. There is no controversy as to the condition and appearance of this bill, when it was received by the plaintiff. Its face is daguerreotyped in the bill of exceptions, as nearly as it was possible to do so. We may then assume this appearance to be one of the uncontroverted facts on the trial below. The upper left-hand corner of the bill was torn off, carrying with it the word second, as preceding the words, “Exch. for.” The printed word “second,” in the body of the bill, had black lines drawn through it, and the word “only” written over it. The printed words “first unpaid,” had also black lines drawn through them. These alterations and erasures rendered the bill suspicious on its face, They were well calculated to put the plaintiff on inquiry; and failing to give heed to these monitions, we think he cannot claim to be a bona-fide holder without notice.

The consideration of this bill being thus opened to the defendant, there can be no question that the sale of this bill, under the circumstances disclosed in the record, was a gross violation of trust and confidence. In fact, the abuse of trust is also one of the uncontroverted facts of this case. The plaintiff, as to his legal rights, stands to this transaction in a position no more defensible than Fontaine & Lent would occupy, if they were suing upon it. — Saltmarsh v. Tuthill, 13 Ala. 390; Saltmash v. P. & M. Bank, 14 Ala. 668.

Prom the principles above stated, it is clear that the plaintiff in this case cannot recover, unless he proves that the erasures and alterations of the bill were made with the privity and consent of the defendant. The bill of exceptions sets out all the evidence, and it is equally clear that no such proof can be made. In fact, there is not a shadow of pretense that Pontaine & Bent, or either of them, had authority to make the alterations. Under these circumstances, it is manifest the plaintiff never can recover.

We will not inquire whether the circuit court did or did not err in the various rulings on the introduction of evidence, and in the various charges excepted to. If in any of them there was error, it was error without injury. See Dunlap v. Robinson, 28 Ala. 100; Saltonstall v. Doe d. Riley, ib. 164, and authorities cited.

There is no error in the record availanle to plaintiff, and the judgment of the circuit court is affirmed.

Rige, C. J., not sitting.