The bill of exceptions in this case shows that at the conclusion of Elliott's testimony the defendant offered in evidence a certified copy of a chattel mortgage dated Gadsden, Ala., November 3, 1919, to the Ashville Savings Bank covering two tractors, certified as a correct copy of the record in his office by the judge of probate of Etowah county, Ala. It is further recited:
"The plaintiff objected to its introduction because it had not been properly identified, the execution had not been shown, and it was immaterial, irrelevant, and incompetent, has no bearing on this case and no connection with it, and the loss of the original has not been shown, and no notice had been given to any body to produce the original. The court sustained this objection, and counsel for defendant stated to the court: 'We offer this record of the mortgage for the limited purpose of showing as a fact that there was on record in Etowah county, Ala., an unsatisfied mortgage in favor of Ashville Savings Bank given by Kyle Elliott on this particular tractor; not that the mortgage was in existence or that it had not been paid, but merely to show what the records in Etowah county showed in connection with the bank mortgage on the property. In other words, I take it that this record of this mortgage in Etowah county unsatisfied might carry with it some notice, one way or the other.' "
It further appears that the court then overruled plaintiff's objections, and admitted the copy of the mortgage in evidence solely for the purpose of showing notice to the plaintiff bank.
It appears without dispute that this chattel mortgage and the note which it secured were paid and completely extinguished by the transfer to the plaintiff bank of the note in suit and the payment in cash of the difference.
In his oral charge to the jury, the trial judge submitted to them the question of the bank's good faith in the purchase of the note, and whether the bank had notice of any defense the defendant would have had against Elliott, at the time it purchased the note.
The copy of the mortgage was improperly admitted in evidence because it was not relevant to any issue in the case, and was not competent evidence of notice to the bank of any defect in the note. Perhaps its admission might have been regarded as harmless error but for the fact that the trial judge admitted it as tending to show such notice. And, as there was no other evidence the jury could have regarded as probative of such notice, the probability is that they accepted the trial judge's indorsement of its relevancy and value in that behalf, and it may well have been in fact the inducement to their verdict.
The error of its admission was insisted upon by appellant on the original hearing, but its importance was overlooked, and it received only casual consideration.
A majority of the court are now of the opinion that the ruling complained of was erroneous, and, under the circumstances, prejudicial to the plaintiff.
It results that the application for rehearing must be granted, the judgment of affirmance *Page 506 set aside, and the judgment below reversed, with remandment for another trial.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
THOMAS, MILLER, and BOULDIN, JJ., dissent.