Dickson Bros. v. Bamberger, Bloom & Co. , 107 Ala. 293 ( 1894 )

HEAD, J.

This was an action upon a bond purporting to have been executed by the defendants to the plaintiffs on the 21st day of October, 1892, and payable ninety days after date, for the sum of $700. The defense made by plea of non est factum, was that the instrument had been materially altered without the knowledge or consent of the defendants, after its execution, by inserting therein a place of payment. Although.the record contains ho replication, yet it clearly appears the case was tried, as if the plaintiffs had replied a ratification, the contested question of fact being whether the alleged alteration had been made, and, if so, whether the defendants had, with knowledge, thereof, waived the same, and recognized the instrument as a valid obligation. The assignments of error necessary to be noticed relate to rulings on evidence and the giving of charges at the instance of the plaintiffs.

1st. The plaintiffs introduced their agent Carothers, as a witness, and he testified that the bond had not been altered and that it was then in the same condition as when originally signed. After one of the defendants had testified to the alteration, the following question was propounded to him by his counsel: ‘ ‘Is there anything which impressed on your memory the fact that there was no place of payment in said bond when it was executed? If so, state what it was?” To this the witness replied, that shortly after the bond was executed and after Carothers had left the office of defendants, it was discussed between the witness and his codefendant, as to what kind of note they had given, and as to it being a plain note. Upon motion of the plaintiffs the court excluded that part of the answer referring to the conversation between the two defendants and to this ruling they excepted. The court committed no error in this ruling. The conversation between the two defendants, in the absence of the plaintiffs, and after the execution of the instrument, was not a part of the res gestae, but consisted simply of self serving declarations. It was therefore hearsay in its most objectionable form.— Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538; Hunt v. Johnson, 96 Ala. 130. Nor was it competent to introduce said conversation, nor the fact that it had occurred, in support of the accuracy of the recollection of the witness, in stating that “the instrument was executed without containing a place of payment.” It is permissible to prove by a witness, a reason why the circumstances to which he testifies are impressed on his memory, unless the reason involves the introduction of matter improper for the jury to hear, as we declared in Bell’s Admr. v. Troy, 35 Ala. 184; but the fact that the attention of a witness was specially called to a transaction as to which he testifies, can not be proven bv evidence of his own statements to that effect, made after the transaction was completed, and in the absence of the other party. The answer of the witness above referred to, was nothing less than an effort to support and corroborate his testimony by showing that the conversation occurred, and while not under oath, nor in the presence of the other party, he made a statement, which accorded with the version he was giving as a witness. This was clearly not permissible. These considerations dispose of a like exception reserved upon the examination of the other defendant.

2nd. The plaintiffs offered evidence tending to show that the defendants, with knowledge of the changed form of the instrument, if it was changed, offered to pay one half of the bond and asked for time, in which to pay the balance. The four charges given upon request of the plaintiffs, which are insisted upon as erroneous, assert in substance, that such offer to pay and request for time, if made with the knowledge of the alteration, would constitute a ratification of, and assent to, the alteration of the instrument. There was evidence tending to support the hypothesis of the charges, and its credibility was by them referred to the jury ; the court merely declaring the conclusion of the law, from the fact to be as ascertained. We are of opinion that the charges asserted a correct legal proposition. — Montgomery v. Crossthwaite, 90 Ala. 553, and authorities there cited. It would not have been proper, as counsel for appellants insist, to have allowed the jury to decide whether or not the fact hypothesized amounted to a ratification. This would have been to refer to them the decision of a question of law, which is never permissible. The charges left to the jury the ascertainment of the facts which were relied'on to avoid the plea, and it was for the court alone to pass upon the legal sufficiency of the facts to constitute ratification. — Stanley v. Bank of Mobile, 20 Ala. 652. Charges 8 and 19 given at the instance of the plaintiff in Montgomery v. Crossthwaite, supra, were in substantially the same form, as those here complained of, and were sustained by this court in that case. Such instructions do not invade the province of the jury, nor are they charges upon the effect of the evidence in any objectionable sense.

This disposes of all the assignments of error, which are-insisted upon in the brief of appellants’ counsel. We discover no error in the record, and the judgment of the circuit court is affirmed.

Affirmed.