Winkles v. Guenther & Co.

Lumpkin, Justice. An action upon a promissory note for $126.50 was brought by Guenther & Company against Winkles. He filed a plea of non est factum, and also a pléa alleging that without his knowledge or consent the note, after he had [473] signed it, had, with intent to defraud him, been altered by the owner, or some one having an interest in it, by changing the word “four” to the word “six,” thus making it a note for $126.50 instead of $124.50, as it was when signed. The evidence showed that the note as originally-written was for the latter amount, but was decidedly conflicting as to when the erasure and interlineation had been made. There was a verdict for the plaintiff for the lesser amount, and the defendant assigns error upon the overruling of his motion for a new trial. 1. It is obvious that if the change in question was made before the note was executed, there was no “alteration” at all; for in that event, the note remained exactly as it was when signed, and accurately expressed the contract intended to be made. If the change was made after signing, then there was such an “alteration” as is contemplated by section 2852 of the code; and in that event, it would become important to ascertain by whom, and with what intent, the terms of the note as originally written were changed. 2, 3. The materiality of an alteration in a contract is always a question of law for the court. The alteration in the present case, though apparently trivial, was material in a legal sense, because its effect, if unchallenged, would be to make Winkles liable for a larger amount than he had contracted to pay. In the opinion by Judge Lumpkin in Tedlie v. Dill, 2 Ga. 131, he states that the materiality of the alteration is always a question for the court, and then remarks, “but whether the alteration was made before or after the execution of the instrument,-in the more recent eases, has been decided by the court; formerly, it was referred to the jury.” Be this as it may, the law is now well settled that when the genuineness of the instrument is denied under oath, the time when, and the intention with which, a change in it was made, are questions of fact for the jury. In the case just cited, Judge Lumpkin also re [474] marked that some of the authorities maintained that if an instrument was altered in a material part, and the party claiming under it failed to explain it, the contract was absolutely void and there could be no- recovery upon it; but that, on the other hand, it had been held -that the law will not presume that an alteration apparent upon the face of the paper was made after its execution. It is, however, not a case for presumption where a plea of non est factum has been filed and the alteration distinctly attacked as having been made after execution. In that event, the plaintiff is put on proof. In Planters & Mechanics Bank v. Erwin, 31 Ga. 371, it was held that in such a case the law presumes nothing, but leaves the' whole question to be passed upon by the jury. And see Wheat v. Arnold, 36 Ga. 479, which was an action on a promissory note, the defense to which was that the note had been altered and changed, after the defendant had signed and delivered the same, in certain specified and material parts. The remarks of Judge McCay in Thrasher v. Anderson, 45 Ga. 544, are in perfect accord with what we now rule, for he says, “the rule is well settled in this State that alterations are, ■prima facie, presumed to have been made before execution, unless the paper he ' denied on oath.” And again, in Thompson et al. v. Gowen, 79 Ga. 70, it was decided that a bond altered in a material part and declared upon as altered, was admissible in evidence without explaining the alteration, “unless there is a sworn plea of non est factum, or some plea denying on oath that the alteration was made with the consent or by authority of the makers of the instrument.” Indeed, section 3835 of the code settles the whole question. It declares: “If the paper appears to have been materially altered, unless it is the cause of action,- and no plea of non est factum is filed, the party offering it in evidence must explain the alteration, unless the paper comes from the custody of the opposite party.” Although the verdict in the present case was apparently [475] just, we are constrained, to grant a new trial because tbe court submitted to tbe jury tbe question of tbe materiality of tbe alleged alteration in tbe note, and also charged them' that tbe burden of proof was on tbe defendant to show that tbe alteration was material and that it was made by tbe owner of tbe note, or some one interested in it, with tbe intent to defraud tbe defendant. These instructions were erroneous, and necessitate another bearing. If tbe law bad been correctly presented to tbe jury, tbis court would not have disturbed tbe verdict rendered. Judgment reversed.