Boardman v. Gore

1 Stew. 517 | Ala. | 1828

JUDGE T AYLOR

delivered the opinion of the Court.

The question we have to decide is, was B, M. Garner authorized to insert his name as payee of this bond, after the division of the bonds among the members, of f.h^ company? i

It is not proved, but we are bound to presume, that Garner was one of tbe company amono; whom the insttu-ments, of which the bond in question was one, was to he divided.

It has been insisted in argument, that no agreement on the part of the obligors, that the names of the obligees should be inserted, can be inferred from the testimony; that it is only proved, such an understanding existed among the members of the company: and even if such an alteration could have been legally made with the consent of the obligors after the instrument was signed apd sealed, which is denied, yet no such consent appears. I am of á different opinion. It does appear to me that the only idea which will strike the mind from the evidence, is, that the space foi the insertion of the name of the obligee, was left blank, with the express understanding and agreement of the obligors that such space should be filled up by the person to whom, in.the contemplated division by the company, this bond should be allotted,

y Does the alteration, then, which was made in this bond, by virtue of the previous agreement between the parties, render it void ? The ancient doctrine seems to have forbidden any change in a bond after it was executed, even with the express consent of all the parties •. but no modern cases, it is believed, can be found to support it; on the contrary, it is overruled in England. ^a In tbe United otates, almost every decision has sustained bonds which have been thus altered, and it has uniformly, so far as my examination has extended, (-ind no caséis produced to the contrary,) been held, that the agreement might be by parol. ^b It is even held that such consent may be implied from the nature of tbe alteration. Now it is difficult to conceive a case in which the implication would be stronger than in the present, were there no evidence to the fart.

It may, indeed, be well doubted whether the alteration was at all material. The bond was made payable to bearer, and it is by no means certain it is any more obligatory upon the obligors with, than without the name of an obligee.

But it is urged, that the evidence was calculated to take; Williams by surprize; that he bad no notice from the pleadings, of the manner in tvhich the plaintiff intended to sustain the action. This objection comes from him with an ill grace. He. filed the general plea of non est factum; to sustain that plea, he proves that no payee’s name was inserted at the time he executed the instru-nlenl;< Has not ^he plaintiff, who is an assignee, much more right to sav that he is surprized by the nature of the defence ? While he is preparing himself to prove that the defendant did sign, seal, and deliver the bond, all bis evidence procured with so much trouble, is rendered useless by an objection he did not anticipate. It is believed that the evidence of the plaintiff grew out of that of the defendant, and that it should have gone to the jury in the state of the pleadings.

It is, therefore, the opinion of this Court, that the Circuit Court erred in the instructions given to the jury, that under the plea of non est factum filed by the defendant Williams, the evidence that the defendant agreed that the name of the obligee should be inserted after he had signed and sealed the bond, should have had its full effect with the jury, if believed by^ them, to prove the bond to be the deed of Williams. It is also our opinion, that a parol agreement by Gore, that the obligees name should be inserted, was as competent to prove that fact, as his agreement under seal could be.

Judgement reversed and cause remanded.

The Chief Justice and Judge Pehb.y not sitting.

a 0 ?ee ls!Nstra; other cases dted 48o,2noteSi.Jlliie

b . See the author and lust cited.