Winter & Loeb v. Pool , 100 Ala. 503 ( 1893 )

STONE, C. J.

When a note, after its execution and delivery, has been altered in a material part, prima facie no recovery can be had upon it. Upon proof that the paper has been so altered, the burden is cast on the plaintiff to' overcome the presumed invalidity of the paper—this prima facie intendment. This he may do by showing that the alteration was made with the consent of the promissor, or that it was made by a stranger having no interest in it. Unless such proof is made no recovery can be had.—Anderson v. Bellinger, 87 Ala. 334; Montgomery v. Crossthwait, 90 Ala. 553; 1 Amer. & Eng. Encyc. of Law, 503 et seq.; Wharton’s Ev. § 626; 1 Greenl. Ev. 564, and note. An immaterial, formal alteration, noi changing the legal effect of the contract, is harmless, no matter by whom made.

The alteration alleged to have been made in this case was material. It changed and converted a non-negotiable note into commercial paper. This, if proved, destroyed the validity of the note, unless its effect was overcome in one of the methods named above.

There was no testimony offered that the alteration was made by a stranger, and hence it was not necessary to allude to that question in the charge. . Had there been such proof the charge would have been faulty. Being construed in the light of the testimony we find no available error in it, so far as this aspect of the question is concerned.

The Circuit Court clearly erred in the admission in evidence for the defendant of the notes made by Scaife and another to the same payees, as those shown in the note in this case. Such testimony was not admissible for any purpose in the contest between these parties. Any influence it could exert was bound to be prejudicial to the plaintiffs in this suit.

We feel it our duty to call attention to the state of the pleadings shown in this record. The complaint declares on the note as payable “to L. Cahill & Co. or bearer, and which said note has been transferred for value , to plaintiff, and is now their property, and is due and unpaid.” The defense consists of a single sworn plea of non est factum, in the form prescribed in the Code. The replication to this plea is in the following language: “Plaintiff replies to defendant’s said plea that they purchased said note for value before maturity, and without notice of any alteration in said note.” There was neither demurrer nor rejoinder to this replication. The recital in the judgment entry is, “Came the parties by their attorneys, and issue being joined on the plea of non est factum and replication of plaintiff, thereupon carne a jury,” &c. This is all that is shown in the pleadings and in the judgment entry in relation to the issue formed. Nor would the recital in the bill of exceptions better the defendant’s condition, even if we could look to it in contradiction of what the pleadings and judgment entry show. All it affirms on this question is, that “there was a plea of non est factum and issue on it.” So, the issue formed was plaintiffs’ averment “that they purchased said note for value before maturity, and without notice of any alteration in said note.

We will not say this replication presented a material issue. That is not the question. When parties go to trial on an immaterial issue, the verdict and judgment may be decisive of the case; and the rulings must be made to accommodate themselves to the issue as formed. If the truth of the averment in bar or preclusion be made good, this must control the finding and the judgment, irrespective of the inquiry whether it raised the question of merit in the contention. In such conditions parties must be left free to choose their own methods of forensic warfare, and to determine their conflicting claims in the manner of their mutually consenting choice. A judgment on an immaterial issue, if no re-pleader be moved for, is as conclusive as any other.—Mudge v. Treat, 57 Ala. 1; Hammer v. Pounds, Ib. 348; Locke v. Locke, Ib. 473; Moore v. Robinson, 62 Ala. 437; Rosser v. Bunn, 66 Ala. 89; Snow v. Schomacker Mang’f. Co., 69 Ala. 111; M. & E. R’w’y. Co. v. Chambers, 79 Ala. 338; Jones v. Collins, 80 Ala. 108; Graven v. Higginbotham, 83 Ala. 429; Ala. Gr. So. R. R. v. Arnold, 84 Ala. 159; Agnew v. Walden, Ib. 502; McKinnon v. Lessley, 89 Ala. 625; Montgomery v. Crossthwait, 90 Ala. 553.

The foregoing principle renders the concluding clause of the court’s charge inapplicable and improper in this case, as shown in the present record.

Reversed and remanded.