151 Ga. 408 | Ga. | 1921
The Civil Code (1910), § 5676, is as follows: “The plea of non est factum is a denial of the exeéution of the instrument sued upon, and applies to notes and other instruments, as well as deeds, and applies only when the execution of the instrument is alleged to be the act of the party filing the plea, or adopted by him.” A bona fide holder for value of a promissory note, who receives the same before it is due and without notice of any defect or defense, is not protected from the defense of non est factum set up by the maker or indorser. Civil Code (1910), § 4286. The plea of non est.factum may deny either the original execution of the contract sought to be enforced, or its existence in the form then subsisting. Civil Code, § 4295. The erasure of the name of Fowler, the original payee in the note, and inserting in lieu thereof the name of W. G. Cornett as payee, who was one of the accommodation indorsers at the time such substitution was made, was a fundamental change in the contract. In truth, it was the creation of a contract from which had been eliminated the original payee, who was an essential party to the contract as it originally existed.
The Civil Code (1910), § 4296, declaring the effect of a material alteration of a written contract, is not applicable in the case submitted here. That section is as follows: " 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,
The instant case, as stated in the first question propounded by the Court of Appeals, is’somewhat on the line of Thomason v. Wilson, 127 Ga. 141 (56 S. E. 302), but is more distinctly without the scope of the code section last cited than that case.
It follows from what we have said that the facts stated in the first question propounded by the Court of Appeals will support the plea of non est factum filed by all the indorsers. In view of the answer given to the first question it becomes unnecessary to answer the other two questions.