Bogarth v. Breedlove , 39 Tex. 561 ( 1873 )

Ogden, P. J.

The judgment in this case is erroneous, and should have been set aside by the court below upon the motion for a new trial. The defendants pleaded non esifactum to the note sued on, and upon the production of the same in court, it showed upon its face that it had been altered in a material respect, showing most clearly that it was not the note executed by the defendants. We think the court erred in permitting any explanation of the apparent alterations in the note by witnesses, there having been no foundation laid in the pleadings for such testimony. And we are clearly of the opinion that the court erred in permitting the introduction of the note as evidence to the jury after the explanation. The explanation proved that without the knowledge or consent of the defendants, who were then before the court, the note, after it had been signed by them, had been altered or changed so as to read $300 gold, the word “gold'' having been interlined. This was a material alteration. Its identity and legal effect had been destroyed, and it was no longer the agreement the defendants promised to perform, and could not legally be used in evidence against them. (Miller v. Alexander, 13 Texas, 505; Park v. Glover, 23 Texas, 473.) We are at a loss to understand how the jury could, under the charge given by the court, bring in a verdict for the plaintiff, and we are more at a loss to understand why the court did not, on a motion for that purpose, set aside a verdict founded in total disregard of the charges given. The judgment must be reversed ; and as the note has lost all its validity or binding force by the unauthorized and illegal alteration, the cause will be dismissed. Dunlap maybe held responsible to Stuart & Mair, but not the appellants.

The judgment is reversed and the cause dismissed.

Revebsed and dismissed.