This suit was brought in a justice’s court upon an open account for a quantity of tobacco sold and delivered by Smith, Stewart & Company to the defendant, Pritchard, who defended upon the ground that the account sued on was settled by his promissory note, which, by agreement with the plaintiffs, was taken in satisfaction and payment of the same; that the note he gave was payable at Tennille, and “ Tennille ” was stricken therefrom by the plaintiffs, and in lieu thereof they inserted the u First National Bank at Macon, Georgiathat this alteration was intentionally made by them, and without his knowledge and consent, in a material part of the contract, with intent to defraud him; and therefore he insisted that not only the note, but the whole contract, became and was void. It was admitted on the trial that the alteration was made in the note by the plaintiffs, but they denied that it was material, or that it was done with intent to defraud the defendant, but averred that it was simply for their own *465convenience in making collections. It appeared in evidence that they wrote to the defendant that the note was in the First National Bank at Macon, and asked payment: he in reply promised to pay if they would send the note toTennille, which was accordingly done, and upon its presentation at that place, he refused to pay it solely for the reason that it had been altered; it was admitted that he had never paid for the tobacco sold and delivered to him. The justice of the peace, before whom the case was tried, gave judgment for the defendant, from which the plaintiffs appealed to a jury in that court, who, upon the trial before them, returned a verdict in his favor. From this a certiorari was sued out, and upon its hearing the judge of the superior court sustained it and set aside the judgment entered on appeal in the justice’s court, and ordered a judgment to be rendered for the plaintiffs for the principal and interest due on this account, together with the cost of suit.
To this decision the defendant excepted and brought the case to this co urt by writ of error. Defendant excepts specially to the direction given by the judge to enter judgment in favor of the plaintiffs, because he insists that the errors complained of were not errors of law solely, which must finally govern the case, but there were questions of fact involved that rendered it necessary to send it back to the justice’s court for another hearing. Code, §4072. As instances of disputed facts, he alleges that there was a conflict of evidence upon the point that his note was received in payment and satisfaction of the account it was given to liquidate, and that there was a dispute as to the materiality of the alteration made in the note and the fraudulent intent with which it was done. As to the first specification, we are compelled to say, from a careful examination of this record, that we can discover nothing to take this case out of the general rule that bank checks and promissory notes are not to be deemed payment until they are themselves paid. Code, §2867, and *466citations. The testimony had on the trial discloses no express agreement, or any resembling it, on the part of the plaintiffs to receive the note of defendant in satisfaction and payment of the debt due from him to them. He may have implied as much from the undisputed facts and circumstances attending the transaction, but such an implication, however honestly entertained, is no substitute for the express agreement required to make the note a payment of the demand.* There is no controversy as to the alteration of the note given in settlement of the account, and none as to the facts from which a fraudulent intent in making it is sought to be deduced. This being so, the materiality of the alteration and the intent with which it was done become questions of law to be decided by the court.
We are satisfied that protest and notice, as was so earnestly and plausibly contended by the able counsel for the defendant, are not essential to fix the liability of the maker of a promissory note, even though it be made payable on its face at a bank or banker's office, or when it is discounted at a bank or banker’s office, or when left at either for collection, although it is otherwise in either case where an endorser, or one not primarily liable, is to be charged. Code, §2781, and citations. Such being the case, the intent with which the alteration is made becomes immaterial. Therefore there was no error in the court’s rendering final judgment on the hearing of this certiorari and the return thereto in favor of the plaintiffs. Code, §4072, and citations.
Judgment affirmed.
See 20 Am. Deo. 462n.