Garner v. Continental Trust Co.

Bell, J.

Under the evidence as adduced in this case there was an issue of fact as to whether the note sued on had been altered by a change of the date from October 5 to October 6, 1925. While in one part of the defendant’s testimony “he stated that the note bore no physical evidence of said ‘6’ having been changed from any other numeral,” yet in other portions of his evidence he testified positively several times that the note was “dated October 5th, 1925.” His testimony, of course, must be construed most strongly against him, but, even so, it does not appear conclusive from the evidence either that the note was signed without being dated or that when signed it bore date of October 6, and this is true notwithstanding there may have been no physical evidence of alteration upon the note itself.

The suit was by the plaintiff as a holder by indorsement, and upon the issue as to alteration depended the question whether the defendant maker would be let in to certain defenses pleaded by him. There being a conflict in the evidence in regard to such issue, the case was left open for determination by the jury, a trial by jury having been demanded by the defendant. It follows that the judge of the municipal court erred in directing the verdict in favor of the plaintiff, and also that the superior court erred in not sustaining the certiorari.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.