Gwin v. Anderson & Bros.

Simmons, Justice.

This was an action in a justice’s court on a promissory note, in the following words and figures:

“Gordon county, State of Georgia, Aug. 7th, 1890.

“$36.00. Ou or before the first day of August, 1891, I promise to pay L. Cahill & Co., or bearer, without offset, thirty-six dollars, at Nat. Bank of Dalton, value received. If paid at maturity, interest at six per cent, from August 1st, 1891, but if not paid when due, interest at 6 per cent, per annum from date until paid. Homestead and all other exemption waived by the maker and each indorser. (Signed) J. T. Gwin.”

To this action the defendant filed a plea in which he alleged, that the note had been altered or changed since signed by the defendant, and without his knowledge, ■ consent or authority, in this:,that as signed, the note was payable generally and not at .any bank; whereas it is now, as altered or changed, made payable at the National Bank of Dalton; and that when signed, it did not have ou its face the figure “six” between the words “at” and “per,” but that the same has been added since signed, without his knowledge, consent or authority; whereby his liability is increased, and under the law he ought not to be held liable for any sum. Upon demurrer this plea was stricken. The plaintiff proved the execution of the note, and then offered it in evidence. The introduction of the note was objected to by the defendant, and the objection was overruled. The justice rendered judgment for the plaintiff, and the defendant sued out a certiorari to the superior court, and on the trial of the case in that court, the certiorari was overruled. The defendant excepted, and brought the case here for review.

1. It appears that this note, when executed, did not specify any place of payment or any rate of interest from date. The place of payment, as well as the rate of interest from date, was afterwards inserted. This, in our opinion, was a material alteration. As originally executed, the note was payable generally, and not at any particular place; and not containing when executed any rate of interest from date, it would not have borne any interest at all until after maturity. The fact that the body of the note was printed, and blank places left for expressing a place of payment and rate of interest, would not authorize the holder of the note to fill these blanks. There is some conflict in the decisions of different courts on this subject; but we think the sounder and better view is, that the filling of these blanks, as above stated, was a material alteration of the note.

2. Section 2852 of the code declares: “If a written contract be altered intentionally, and in a material part thereof, by a person claiming a benefit under it, with intent to defraud the other party, such alteration voids the whole contract, at the option of the other party. If the alteration be unintentional, or by mistake, or in an immaterial matter, or not with intent to fraud, if the contract as originally executed can be discovered and is still capable of execution, it will be enforced by the court. If the alteration be made by a stranger, and not at the instance or by collusion of a party or privy, if the original words can still be restored, the contract will be enforced.” When, therefore, a party sued upon a written contract seeks to avoid it entirely by setting up that it was altered in a material part, he must allege in his plea that the alteration was made by a person claiming a benefit under the contract, and with intent to defraud. If this allegation is made, and is sustained by proof, he will not be held liable for any amount on the contract. If the alteration is unintentional, or made by mistake, or in an immaterial matter, and without intent to defraud, the court will enforce it, if the original contract can be discovered and is capable of execution. Lowry v. McLain, 75 Ga. 372 (3). The plea above set out not alleging that the alterations were made by a person claiming a benefit under the contract, and with intent to defraud, and no proof being offered to show these facts, tbe court did right in holding that the note was not void. The effect of the plea, as above set out, if sustained by evidence, would be to defeat the action as to interest from the date to the maturity of the note; but it was not insisted on as a partial defence, or as adefence to the amount of interest. The defence relied upon being that the defendant was not liable for any amount on the note, because of the material alterations-therein, and the plea not containing the allegations required by the code, the court did right in striking the plea.

3. In order to meet the plea of non est factum, the plaintiff proved by a witness that the defendant had admitted signing the note. When this was done, it was admissible in evidence without any explanation of its contents which do not appear as alterations on the face of the note.

4. Inasmuch as the plea stricken was not a defence to the whole action, and was not pleaded or insisted upon as a partial defence only, the court did not err in overruling the certiorari. Judgment affirmed.