Wheat v. Arnold

36 Ga. 479 | Ga. | 1867

Waknek, C. J.

The error assigned to the judgment of the Court below in this case, is in refusing to grant the motion for a new trial •upon the several grounds specified therein. This was a suit instituted upon a promissory note, alleged to have been altered in a material part thereof, after its execution and delivery. The defendant filed his plea as to the fact of the alteration of the note under oath. When the note was offered in evidence, the defendant objected to its being read until the alteration had been explained or accounted for by the plaintiff. The Court overruled the objection, and allowed the note to be read in evidence to the jury. We think it was incumbent on the plaintiff to have explained the alteration on the face of the note, when offered in evidence, if required to do so. It is true, the 2803d section of the Revised Code relates to instruments not set forth as the basis of the action, so as to require a denial on oath, but we apprehend that section of the Code was not intended to repeal the common-law rule of evidence in such cases by mere implication. If, on the production of the instrument, it appears to have been altered, it is incmnbent on theparty offering it in evidence, to explain this appearance. — 1st Greenleaf’s Ev., 629, section 564. The plaintiff upon the trial attempted to show that this note was given for a bill of goods purchased in Atlanta. The note is dated 8th March, 1858. The bill of goods is dated 22d March, 1858. By whom the bill of goods was sold, when, or on whose account, the record does not show, nor is the amount of the bill of goods shown. Whether the bill of goods corresponds with the altered amount of the note, does not appear. The evidence, as disclosed by the record before us, is entirely vague and unsatisfactory as to the intent of the party making the alteration in the note. That the note has been altered, and in a material part, there is no doubt, but by whom, and with what intent, is the question to be determined by the Court and jury under the evidence in the case.

If the alteration of the note was intentional, made by a party claiming a benefit under it, with intent to defraud the maker or other parties to it, such alteration voids the whole contract, if they so insist. If the alteration was unintentional, or by mistake, or not made with intent to defraud, it will be enforced by the Court. Revised Code, section 2801. To allow a material alteration to be made in commercial paper by the holder thereof, would be productive of great mischief, and whenever it is done, the evidence-should be clear and satisfactory that it was done under such circumstances as will rebut all motive of any fraudulent intention; otherwise, the party making such material alteration, should suffer the legal consequences resulting therefrom. The evidence in this record is not sufficient or satisfactory upon that point, under the law which governs it, in our judgment, and we therefore reverse the judgment of the Court below, and order a new trial in the case.