Withers v. Hart

Smith, J., delivered the opinion of the court. The court below erred in granting the peremptory instruction requested by appellee. It is apparent from the face of the note sued on that same had been materially altered. Without referring to all of the alterations claimed to have been made therein, it will be sufficient to say that this note was executed by filling in a printed form used by the Bank of Woodville, in which the name of the Bank of Woodville appeared as payee. This name, “Bank of Woodville,” was erased, and the name of J. A. Davidson, appellee’s intestate, was substituted therefor. Appellant by his plea alleged, and offered himself as a witness to prove, that the note had been executed by him to the Bank of Woodville, and by him paid, and that the change in the name of the payee was made thereafter without his knowledge or consent. When a negotiable instrument appears on its face to have been materially altered, it devolves upon the plaintiff to show that such alteration was made under circumstances legal and proper. This appelleq failed to _do; the only evidence introduced by him, other than the note, being an agreement of counsel that the signature to the note was the signature of appellant. Bank v. Lum, 7 How. 414; Ellison v. M. & O. R. R. 36 Miss. 512; Croft v. White, 36 Miss. 455. Reversed and remanded.