Simons & Co. v. McDowell

Cobb, P. J. (After stating the foregoing facts.) One of the grounds in the motion for the new trial was the failure of the court to charge that “if Simons & Co. came into possession and ownership of the two notes sued on for value, before maturity, and in good faith, they would be entitled to recover thereon, unless notice was brought to them that said papers had been changed or altered in a material part thereof.” If the court had charged this doctrine, it would have committed a serious error. If the two defendants wore sureties, as they claimed, and a‘variation in the terms of the contract had been brought about by an alteration of the instrument, i. e. changing the notes to drafts, it was immaterial whether a holder of the drafts was a bona fide purchaser before maturity or not. The change in the terms of the contract releases the surety from liability as against any person, no matter how he comes into possession of the instrument. If the alteration be admitted, the contract becomes one to which the surety is not a party, and he can not be sued “upon a debt he never did contract.” Hill v. O'Neill, 101 Ga. 832. 2. Error is also assigned, “because movant contends the court refused and failed to determine and decide whether the alteration was material or not, and the failure to do so was error, as it is not a matter to be determined by the jury.” It appears, from the charge, that the court instructed the jury that if the alterations [205] were made as contended by the defendants, they were material. There is, therefore, no merit in this assignment. 3. Another assignment of error is, that “the court erred in not giving in charge the written request made by the plaintiff.” No written request to charge, properly identified by the trial judge, appears in the record. There are two sheets with the heading, “request to charge.” There is nothing in the record to show that these were the requests submitted in the trial of the case, and therefore we can not pass upon this assignment. The charge of the court was full, and correctly set forth the law of the case. 4. The evidence 'was conflicting, and the jury would have been authorized to find for either side. The trial judge has approved the verdict, and we will not undertake to control his discretion. Judgment affirmed. All the Justices concur.