Glover v. Gentry

HARALSON, J.

1. If the note alleged to have been executed by the deceased, Wm. Moore, to the appellant, the plaintiff below, was never transferred by him to his wife, Mrs. A. A. Glover, she was a competent witness for her husband in the suit. — O’Neal v. Reynolds, 42 Ala. 198 ; Davis v. Tarver, 65 Ala. 101. If the note, however, was transferred to her by her husband, she, as well as he, comes within the spirit and policy of the statute, and was not competent to testify. — Boykin v. Smith, 65 Ala. 294; Hodges v. Denny, 86 Ala. 228; Miller v. Cannon, 84 Ala. 63; Goodlett v. Kelly, 74 Ala. 218.

The evidence of Mrs. Glover shows she had accepted a transfer of the note from her husband. Her testimony is, that her husband had transferred the note to her, if she would pay over money to him, which was owing to her by her brother, which money had not been paid as yet by her brother; and that she had a few minutes before she was testifying, “formally recanted” the trade with her husband, without the advice of her attorney. It is said the writing by which she recanted was introduced in evidence, but it does not appear in the record. It does not appear that her husband was a party to the “recantation,” or was present, or on what consideration it was done, or anything else, except what has been stated.

Her husband, as was shown, after the institution of this suit, executed and delivered to the clerk of the court, a paper stating — after naming the title of this cause — that, “I, S. H. Glover, plaintiff in said cause, do hereby transfer said cause to the use of Alethea A. Glover, this the 5th day of June, 1893.” The clerk testified, that he had changed the style of the case on the docket, to the use of Mrs. Glover, on the authority of said paper; that plaintiff delivered said paper to him about two weeks before the trial, and stated that he had made an exchange of papers with liis wife and desired .to place this casein'lierhands on that debt. The plaintiff, in his examination, testified that he delivered said paper to the clerk, and served a copy of the same on the administrators of deceased; but that he had never told his wife about it, had never authorized his attorney to deliver the note to his wife, and he had told her that her brother had refused to give his note to him for what he owed her, and that she and he would consider their trade void, and he had never notified the administrators, that said trade between him and his wife had been rescinded. J. L. Gentry, one of the defendants, testified, that plaintiff in June or July, 1893, served a notice on witness, which purported to set out a transfer of the note in suit to his wife; that plaintiff stated to him that he had transferred this case to his wife and if he won it, he wanted it to go to her, and if he did not, remember that he said he had made said transfer conditionally. The other defendant, Moore, testified that plaintiff had, three or four times, informed him of the transfer by plaintiff of the note in suit to his wife, but said nothing about it being a conditional transfer, and had never notified him of any transfer to plaintiff.

This evidence tends to show that Mrs. Glover was the owner of the note, and that her alleged revocation at the trial of her agreement with her husband was a ruse to qualify her as a witness in this case. It does not look right. The trial court did not err in declining to allow her to testify, that she saw the note signed by the deceased. The evidence authorized the court to hold that the note had been transferred to Mrs. Glover, and that there had been no bona fide re-transfer of the same to her husband,

2. With the view of showing that the deceased owed a large amount of money, one W. C. Glover, a brother of tlie plaintiff, was introduced by the plaintiff, and testified that he drew the will of deceased, who left out of it, to pay his debts, about 30 acres of land on the river, worth $65 or $70 per acre, and four hundred Acres of mountain land, worth from $1 to $1.50 per acre, and about three or four hundred dollars worth of personal property. On his cross examination he was asked by defendants: “If that river land did not lack a fraction of bringing $45 per acre?” To this question the plaintiff’s counsel objected, on the ground, that the record of the administrator’s sale was the best evidence of what the land brought. The objection was not well taken. The evidence was merely collateral to the subject matter in dispute.- East v. Pace, 57 Ala.521; 3 Brick. Dig. 439, § 486.

3. There was no error in allowing, the question pro.pounded to the witness Green V. Moore : “If the plaintiff had not approached him and attempted to borrow money from him, between the time of the making of the note sued on, and the death of deceased?” íhe pecuniary condition of the plaintiff and his ability to lend the money to deceased, was a subject of legitimate inquiry, and his efforts to borrow money about that time, from the witness and others, tended to show his inability to lend this money to deceased. The pecuniary condition of the deceased was also pertinent, as tending to show whether he had occasion to borrow the large sum of money from plaintiff; and so, the question propounded to the witness, Polly McNeely, called for relevant evidence.

4. The question to the witness Kilpatrick, to give his best judgment whether these three words, “twelve hundred and” were written in the same ink that the other part of the note was written in, was objected to because the witness testified, “he was not an expert, and not an expert in ink.” He testified that for 22 years he had been in the timber business, which necessitated the handling of a great many letters, notes, checks, drafts, accounts, &c., and showed qualifications rendering him competent to answer the question propounded, and there was no error in allowing him to answer it. — Vinton v. Peck, 14 Mich. 287.

The other exceptions to the rulings of the court on the introdction of evidence made the basis of exceptions 8, 9 and 10, are without merit.

5. W. D. Land, for the defendants, testified, that the words “twelve hundred and,” in the note in the suit appeared to be written in a different hand from the remainder of the note, and in different ink.

F. J. Kilpatrick testified, that the words “twelve hundred and,” differed from the remainder of the note, and he considered these three words written with different ink, or else it was just possible that the pen might have been clogged at that certain portion of the writing, which will often make a word appear darker or of a different ink; that the writing appeared to be more distinct in said words than any other.

C. E. Kyle testified, “that the note looked like it had been given originally for fifty dollars, and the words, ‘twelve hundred and,’ had been added, and there seemed to be a difference in handwriting and the ink of said words, from the remainder of the note.”

E. PI. Caldwell stated that the words “twelve hundred and,’ ’ wer§ unnecessarily crowded, and that there were no sixteen letters in the document that occupied so small a space as these words did.

W. F. Coffey, J. D. Snodgrass, W. L. Moody and Thomas 1). Stearnes testified to substantially the same thing as was deposed to by the foregoing witnesses.

The plea in the case was non est factum, simply, and it cast on the plaintiff the burden of proving the execution of said note. When this proof is made, the note becomes evidence and imports the consideration expressed, unless there is a suspicious alteration on its face, when the onus is on the plaintiff to explain it. The rule as gathered from the authorities on the subject is stated to be, that where any suspicion is raised as to the genuineness of an altered instrument, whether it be apparent on inspection, or made so by extraneous evidence, the party producing the instrument, and claiming under it, is bound to remove the suspicion by accounting for the alteration. — 1 Greenl. Ev., § 564, n. 1; 3 Randolph Com. Paper, § 1784 ; Barclift v. Treece, 77 Ala. 532; Hill v. Nelms, 86 Ala. 446.

6. The evidence of the defendant was quite sufficient -to throw grave suspicions on the note, as to whether it had been altered, even admitting the signature of the maker to be genuine.

There was no pretext for the plaintiff to ask the general charge. The 2d, 3d and 4th requested by him misplaced the burden of proof, and were properly refused, and the 5th singled out and laid stress on a particular part of the evidence, was argumentative and misleading.

7. Charges 1, 2, 4 and 5 requested and given for the defendants were in accord with repeated decisions of this court. — Lehman v. McQueen, 65 Ala. 570; McWilliams v. Phillips, 71 Ala. 80; Life Asso. of Am. v. Neville, 72 Ala. 517, Jonas v. Field, 83 Ala. 445; Lesser v. Scholze, 93 Ala. 338; Boykin v. Smith, 65 Ala. 299 ; A. G. L. Ins. Co. v. Sledge, 62 Ala. 569; Dismukes v. Tolson, 67 Ala, 386.

8. Charge No. 3 requested by the defendant and given, as we have more than.once held, exacts too high a state of proof, and should have been refused. — Rowe v. Baber, 93 Ala. 422; Harris v. Russell, Ib., 59, A. G. S. R. R. Co. v. Hill, 93 Ala. 516.

For the single error in giving this charge the case must be reversed and remanded.