98 Ga. 472 | Ga. | 1896
An action upon a promissory note for $126.50 was brought by Guenther & Company against Winkles. He filed a plea of non est factum, and also a pléa alleging that without his knowledge or consent the note, after he had
1. It is obvious that if the change in question was made before the note was executed, there was no “alteration” at all; for in that event, the note remained exactly as it was when signed, and accurately expressed the contract intended to be made. If the change was made after signing, then there was such an “alteration” as is contemplated by section 2852 of the code; and in that event, it would become important to ascertain by whom, and with what intent, the terms of the note as originally written were changed.
2, 3. The materiality of an alteration in a contract is always a question of law for the court. The alteration in the present case, though apparently trivial, was material in a legal sense, because its effect, if unchallenged, would be to make Winkles liable for a larger amount than he had contracted to pay. In the opinion by Judge Lumpkin in Tedlie v. Dill, 2 Ga. 131, he states that the materiality of the alteration is always a question for the court, and then remarks, “but whether the alteration was made before or after the execution of the instrument,-in the more recent eases, has been decided by the court; formerly, it was referred to the jury.” Be this as it may, the law is now well settled that when the genuineness of the instrument is denied under oath, the time when, and the intention with which, a change in it was made, are questions of fact for the jury. In the case just cited, Judge Lumpkin also re
Although the verdict in the present case was apparently
Judgment reversed.