Miller v. Griffin , 39 Ga. App. 705 ( 1929 )

Jenkins, P. J.

1. Where the defendant in a suit on a promissory note defends by pleading an alleged alteration in the instrument after execution, he must allege and show that the instrument sued upon was intentionally altered by a person claiming a benefit under it, in a material part thereof, and with intent to defraud him. Civil Code (1910), § 4296. In the instant case, while it is charged in the language of the statute that the instrument sued upon had been altered by a person claiming a benefit thereunder, and with intent to defraud the defendant, the alleged alteration relied upon consisted of the following words: “deed given on 61 acres more or less to secure this claim drawing interest from Dec. 25, 1914, to Dee. 25, 1915,” which words, in the language of counsel for the plaintiff in error, were “written in ink after the printed form in the note in the left-hand corner.” The quoted language amounts to nothing more than a mere memorandum purporting to state when the note bore interest and what it was secured by, and it can not be said that such writing, embodied in the left-hand corner of the paper, could amount to a fraudulent attempt to alter materially the terms of the obligation. Accordingly, the court properly disallowed evidence in support of the plea setting up a fraudulent and material alteration of the terms of the agreement.

2. There was proof on behalf of the defendant from which the jury might have found that the payments claimed by him, and not credited on the note, had been made. Accordingly, while the evidence ^demanded a finding in favor of the plaintiff upon the question of liability on the note, the court erred in directing a verdict for the full amount sued for.

Judgment reversed.

Stephens and Bell, JJ., concur. A. B. Taylor, Willis Smith, for plaintiff in error. Smith & Millican, contra.