McCaskey Register Co. v. Bennett

60 So. 541 | Ala. Ct. App. | 1912

WALKER, P. J.

After judgment against it in the court of the justice of the peace, the appellant (the plaintiff below) by certiorari proceedings secured the removal of the case into the circuit court, and there filed a complaint containing four counts, one on an open account, one on stated account, and two on written contract. Within five days from the date of the filing of this complaint, and before the trial of the case, the defendant was permitted to file an affidavit in conformity with the statute (Code, § 3970) denying the correctness of the account, and also a verified plea of non est factum as to the counts on written contract. There is no merit in the suggestion that either of those papers was subject to objection on the ground that it was not filed in time.

Conceding that permission to file the affidavit might properly have been resisted because of a failure to file it with the justice of the peace, the record does not show that this ground of objection existed, as the bill of exceptions recites that “it does not appear that said affidavit was not filed or offered to be filed in the justice court.” The plaintiff offered in evidence a paper, partly printed and partly written, which on its face purported to be the contract of the defendant. The printed part of that paper evidenced no contract at all. Only by its written parts was the subject-matter of a sale identified and a price to be paid named. The defendant admitted his signature to the paper, but claimed that the parts of it which were in writing were inserted without his consent and after he had signed his name.

It was permissible for him to prove that his signature was procured by the statement of the person with whom he was dealing that he wished it merely as a memorandum of the name of a prospective purchaser. The defendant’s testimony tended to negative the conclusion that he authorized the insertion of the written parts of the paper.

It is plain that if the paper was, without his consent, so altered after it was signed, it was not the defendant’s contract, and that the plea of non est factum was sustained.- — Montgomery v. Crossthwait, 90 Ala. 553, 8 South. 498, 12 L. R. A. 149, 24 Am. St. Rep. 483; Lesser v. Scholze, 93 Ala. 339, 9 South. 273; 16 Encyc. of Pleading & Practice, 544. The evidence set out in the bill of exceptions is not snch as to warrant us in disturbing the finding made by the trial court sitting without a jury.

' Affirmed.