Prim & Kimbell v. Hammel , 134 Ala. 652 ( 1902 )

DOWDELL, J.

The instrument sued on was drawn up by the payee, Fitzpatrick & Co., leaving a blaink to be filled in by the makers with the amount, but with marginal figures of “$1,500,” and in this form was sent to the defendants, Prim & Kimbell, for execution, and it was by them signed and returned to Fitzpatrick & Co., without writing any amount in the body, but leaving tbe blank to be filled in by tbe payee.' Fitzpatrick & Co. filled in tbe blank by writing “one thousand dollars,” and changed tbe marginal figures from $1,500 to $1,000 to correspond with the writing in the body of tbe paper. Fitzpatrick & Co. then indorsed the instrument in blank, and before maturity delivered the same to the plaintiff as collateral security on a debt then owing by tbem to him, and in consideration of an extension by the plaintiff of their said indebtedness. It is not pretended that the plaintiff had any knowledge, at or prior to the time of the transfer of the paper to him, of the alteration of tbe marginal figures by Fitzpatrick & Co.

Tbe instrument by tbe statute is made negotiable paper. — Code, § 869; Louisville Banking Co. v. Gray, 123 Ala. 251, and authorities there cited. Did the changing of the marginal figures-from “$1,500” to “$1,000” constitute such: an alteration as to avoid the contract? It is evident that the change -which was made, was in the interest of the makers, and consequently of no detriment to them. B-uit avoiding a contract by a material alteration after its execution by an- interested party without the know-ledge and consent of the maker, does not depend on the question of detriment to the maker. See Brown v. Johnson Bros., 127 Ala. 292, where the subject is discussed, and authorities cited.

It is a. well settled proposition of law that in a bill or note, where the figures in the margin do not correspond with the. amount written in the body, the latter will always control. It has been held that the marginal figures are no part of the bill or note. — Smith v. Smith, 53 Am. Dec. 652, and notes to that case. In 1 Daniel on Negotiable Instruments, (3d ed.), page 96, section 86, it is said: “Marginal figures ax*e really ixot a part of tlxe instrument, but a mere memorandum of the amount.” See. also 4 Am. & Eng. Ency. Law (2d ed.), p. 130. But without determining lxow far tlxe marginal figures are a material part of the instrument where no amount is expressed in the body, we are satisfied oxx authority and. reason, that where the amount is written in the body of the instrument, tlxe marginal figures do not; constitute .such a material part as that an alteration of the same Avould amount to a material alteration of tlxe contract. Since the writing in the body controls, the nxaxgixxal figures are wholly unimportant. If Prim & Kimbell had filled iix the blank by writing “one thousand dollars,” it is quite clear that the subsequent change of the marginal figures of $1,500 to $1,000, to correspond with the writing iix the body, woxxld lxa.ve made no material alteration in the contract. Signing the note in blank as was done, axxd retuxuixxg it to tlxe payee in that condition, was axxthoilty to tlxe payee to fill in the blank. — First National Bank v. Johnston, 97 Ala. 664; Robertson v. Smith, 18 Ala. 225; Huntington v. Bank, 3 Ala, 186. Where, authority to fill blanks left in a negotiable instruixxent has beeix exceeded, the instrument, notwithstaxxding, will be enforceable in the hands of a transferee for value who comes regularly by it without notice that, the authority had been exceeded. — Winter v. Pool, 104 Ala. 583; Huntington v. Bank, supra; 2 Am. & Eng. Ency. Law (1st ed.), p .340 axxd note 4. Whatever xxxay have been the effect as between the payee and maker as to the marginal figures indicating what amount the maker intended for the payee to fill in the blank left in the instrument, we need not decide; but in such ease, for the same reason that a negotiable instrument in the hands of an innocent transferee for value in due course of business is enforceable, where the authority given to fill blanks has been exceeded, the understanding or intention of the maker and payee, or either of them, could not affect the right of an innocent transferee for value. A negotiable note transferred to secure a pre-existing debt, makes the transferee a bona fide holder for value, and the note in his hands isi not subject to equities between original parties of which he had no notice,' — Louisville Banking Co. v. Howard & Kornegay, 123 Ala. 380; Louisville Banking Co. v. Gray, 123 Ala. 251; First National Bank v. Johnston, 97 Ala. 655; Spira v. Hornthall, 77 Ala. 145; Connerly v. P. & M. Ins. Co., 66 Ala. 432. To the plea of payment there was a special replication, which averred that plaintiff acquired the note or instrument sued on by indorsement before maturity for value, and that said note was never paid to plaintiff or any one for him by him authorized, and issuance was joined on this replication. Having made the note negotiable and put it in circulation, the holder* became the only payee with whom the maker could settle, and it is no defense to the suit to show that the maker paid the original payee. The instrument was indorsed in blank and delivered to L. Hammel. The suit was brought in the name of Hammel individually, and there was no error in sustaining plaintiff’s objection to the question whether Fitzpatrick & Co. were indebted to L. Hammel & Co.

The seventh an'cL eighth assignments of error are expressly waived in argument by counsel.

What we have said disposes of the questions presented in the remaining assignments of error.

We find nothing in the rulings of the circuit court complained of prejudicial to the rights of the appellants.

Let the judgment be affirmed.