32 Ala. 430 (Ala. 1858), White v. Hass

Citation:32 Ala. 430
Opinion Judge:RICE, C.J.
Party Name:WHITE v. HASS.
Court:Supreme Court of Alabama

Page 430

32 Ala. 430 (Ala. 1858)




Supreme Court of Alabama

January Term, 1858


APPEAL from the Circuit Court of Barbour.

Tried before the Hon. S.D. HALE.


The alteration of the note was material, and appears to have been made after its delivery to the payee. The presumption is, that the alteration was made by him; and it is well settled, that such alteration of a note by the payee, without the assent of the maker, renders the note void. The alteration being shown, and the presumption arising that it was made by the payee, the burden was upon him to prove the assent of the maker to it. If he failed to make that proof, he was not entitled to recover, either upon the note, or under any count founded on the same consideration with the note. For, although the note, not being under seal, may not be a merger of the contract for which it was given; yet, as the note was at first valid, there can be no recovery on the contract, unless the note still continues valid, and is produced in evidence, or proved to have been lost by time or accident. And to allow the payee, after he had designedly made a material alteration in the note, without the assent of the maker, to recover upon the contract for which the note was given, would be to depart from the sound and just principle, that "no one shall be permitted to take the chance of committing a fraud, without running any risk of losing by the event, when it is detected." Master v. Miller, 4 T. R. 329; Martendale v. Follett, 1 N.H. Rep. 95; Chesley v. Frost, ib. 145; Humphreys v. Guillow, 13 ib. 385; Newell v. Mayberry, 3 Leigh, 250; Davidson v. Cooper, 13 Mees. & Welsby, 342; 1 Greenl. on Ev. § 121.

We will not say, that the facts proved by the evidence in the present case were not sufficient to...

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