Carroll v. Warren

SHARPE, J. The motion to strike the bill of exceptions cannot prevail. The bill of exceptions was filed in the circuit court, September 14th, 1900. It purports to have been signed in September, 1900; the day of signature not being specified. It contains an affirmation of the judge to effect that the same was signed within the time allowed by the court and an order of court had allowed for the signing thirty days, without specifying when that period should begin or end. The effect of this order was to extend the time for signing, thirty days from the final adjournment of the term. — Morningstar v. Stratton, 121 Ala. 437. When that adjournment occurred does not appear, but under the statute the court could have continued to a time within the thirty days next before September, hence the affirmation referred to is consistent with the record and is taken as true. — Tarver v. State, 137 Ala. 29. Plaintiff sues as a transferee of a promissory note which in the complaint is averred to have been made by defendant payable to the order of W. T. Magee & Co., at the Peoples’ Bank of Troy, Alabama. The pleas are the general issue, non est factum, and the two other pleas, each averring a failure of consideration. TO the plea of non est factum plaintiff filed a. special replication averring that the plea 'was based on an alleged alteration of the note, and futher averring matter to show he, the plaintiff, had made no material alteration and that he held the same as a bona fide purchaser for value. To the two pleas setting up failure of consideration there Aras interposed the general issue and a special replication Avhich went also to the plea of non est factum, averring “that the note sued upon Avas executed in Alabama, payable at the Peoples’ Bank in Troy, Alabama, in money at a fixed time and Avas purchased by the plaintiff before maturity in the usual course of business for a valuable consideration, without notice of any defect or [400] infirmity in the note or any defense thereto as set ont in said pleas.” There are assignments of error based upon the admission of testimony which, with reference to a note in evidence, was given by defendant to effect that “the note had been changed since he signed and delivered it by ádding the words ‘The Peoples’ Bank, Troy, Alabama’ after the printed words ‘value received at’ and by affixing thereto revenue stamps and cancelling the same; that the same was done without his knowledge and consent and by some one not authorized by him to do so, and that l;e had never consented to or ratified the change, and that he had expressly refused at the time said note was given a. give a note payable at a bank.” The words so said to have been added made the note import negotiability, whereas, under our statute, without words designating a place of payment the instrument would not have been negotiable. An alteration which makes a note speak a language different in legal effect from that which it originally spoke, is material, and when made by one not a stranger to the paper is ordinarily sufficient to avoid the contract as to all parties not consenting thereto. Montgomery v. Crosthwaite, 90 Ala. 553; Woodworth v. Bank, 19 Johns. 391; 10 Am. Dec. 239. The next assignment of error relates to the giving of the general affirmative charge in favor of defendant. Upon the hypothesis of the charge that the evidence was believed, the pleas of failure of consideration were conclusively established, the evidence on that subject being positive in support of those pleas and being also without contradiction. The special replication to those pleas which if proved, might have avoided the defense of failure of consideration, was in that part which averred the note was “executed in Alabama, payable at (he Peoples’ Bank in Trov, Alabama” lacking of support in the evidence. That averment was material to be proved and without proof of it plaintiff was not entitled to succeed on that replication. Apart from the note itself the only evidence as to whether the note when executed designated a place of payment, was in the testi [401] mony' of defendant above quoted from the bill of exceptions and that evidence, if believed, showed there was then no such designation. The note which in the original is sent here for inspection does not by its physical appearance or otherwise afford any inference adverse to this testimony. Such conditions inhering in the pleadings,and evidence justify the giving of the charge requested by defendant, and the refusal of that requested by the plaintiff. Judgment affirmed.