Birmingham Nat. Bank v. Bradley

• Decision Date: 28 November 1895
• Citation: 19 So. 791,108 Ala. 205
• Parties: BIRMINGHAM NAT. BANK v. BRADLEY. [1]
• Court: Alabama Supreme Court

19 So. 791

108 Ala. 205

BIRMINGHAM NAT. BANK v. BRADLEY. ^[1]

Supreme Court of Alabama

November 28, 1895

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by the Birmingham National Bank against John G. Bradley to recover money paid to the defendant as payee and indorser of a raised check. From a judgment for defendant, plaintiff appeals. Reversed.

The pleadings on which the case was tried on the last trial consisted of complaint, amended complaint, and pleas 1, 2 and 3, which are substantially as follows: The complaint contains six counts. The first alleges that, on the 24th of February, 1892, Bradley indorsed said check to said Birmingham National Bank and that said bank thereupon paid him $4,000 in cash; that said check had been altered or raised, after the issue thereof, and before the indorsement thereof by said Bradley to said bank, without the knowledge and consent of the Gate City National Bank, the drawer thereof, from $2 to $4,000, and the name of the payee changed from James Fix to John G. Bradley, and the figures "$4,000" cut or punched in said check; that the Birmingham National Bank paid $4,000 in ignorance of said alteration; that the Birmingham National Bank immediately forwarded said check to the National Park Bank, the drawee of said check, for collection; that the National Park Bank, the drawee, and the Gate City National Bank, the drawer, refused to pay the same to plaintiff, and disclaimed all liability thereon; and that plaintiff informed said defendant of said alteration in said check as soon as it was informed of the fact. The second count of the complaint is substantially the same as the first, except it alleges that said check, on being received by the National park Bank, was credited to the account of the Birmingham National Bank; but, finding out immediately afterwards, that said check or draft had been altered, it charged the same back against plaintiff, and deducted the same from certain funds of plaintiff in the custody of the said National Park Bank, and that the plaintiff, immediately upon being informed of said alteration, notified defendant, Bradley. The third count is for money had and received. The fourth count is for money paid at defendant's request. The fifth count is for money loaned defendant. The sixth count is on a stated account. The three pleas above referred to were as follows: "(1) That he never owed or promised to pay the sum or sums of money claimed therein. (2) That he denies each and every allegation therein contained. (3) That the sum or sums of money therein claimed to be due plaintiff have been paid to plaintiff in full before the commencement of this suit."

The circumstances under which the defendant, Bradley, came into the possession of the check involved in this controversy, and under which he indorsed the check to the bank, are substantially the same as those shown on the former trial of the case, and as stated in the opinion on the former appeal. 103 Ala. 109, 15 So. 440. The case was tried, on the second trial, upon the question as to whether the check (No 156,597) described in the complaint was raised as alleged whether the Birmingham National Bank, in ignorance of the alteration, paid Bradley the $4,000 on his indorsement of said check, and whether Bradley promised, after knowing said check was raised, to pay said money back to said bank. A. W Hill, L. J. Hill, and Edwin S. McCandless, the president, vice president, and cashier of the Gate City National Bank, testified that said check No. 156,597 was originally issued by the Gate City National Bank on February 23, 1892, made payable to James Fix; that it was drawn on the National Park Bank of New York City and was signed, "A. W. Hill, Vice President"; that said check as originally issued has never been presented to said bank for payment; that the National Park Bank, on which it was drawn, never returned it, canceled or marked "Paid"; that it had never been paid by any one else; that the check as now exhibited has been altered from $2 to $4,000, and made payable to John G. Bradley instead of James Fix, and the figures "$4,000" cut in the body thereof; that the signature of A. W. Hill has not been altered; that the body of said check was filled out originally by A. W. Hill, vice president, who had exclusive charge of the exchange department of said bank. There were several witnesses introduced by the plaintiff, who testified that they were expert chemists, and had had a great deal of experience in determining the action of acids and other chemicals on various kinds and qualities of inks in erasures and forgeries, and that they were experts in that line; that they had examined the Bradley check with the naked eye and under a microscope, and could detect no evidence of alteration, but that said check, they knew, as experts, could have been altered,-that is, the original writing taken out, and the other writing put in,-so that it could not be detected that the check had been altered; and that the original writing on such quality and kind of paper as was the Bradley check could be so skillfully erased by the use of acids or other chemicals, as to leave no trace or mark of such original writing or erasure which could be detected by the naked eye, microscope, or any other way. This witness further testified as to the kind of chemicals and acids used in making such alterations and erasures. Upon the examination of W. W. Crawford as a witness in behalf of the plaintiff, he testified that he was the paying teller of the plaintiff in the year 1892, and at the time the money was paid to the defendant on the check. He further testified that, at that time, John G. Bradley, the defendant, was a customer of the bank, and was financially responsible; that, upon Bradley indorsing the check, the bank paid to him, on said check, $4,000. Thereupon the plaintiff's counsel asked the witness "whether the bank paid said money to said Bradley upon the faith of his [Bradley's] indorsement on said check." The court sustained the defendant's objection to this question, and the plaintiff duly excepted.

On the cross-examination of this witness, he was asked the following question: "If said Birmingham National Bank was out of business." The plaintiff objected to this question, and duly excepted to the court's overruling its objection. The witness answered that it was. Defendant's counsel then asked said witness this question: "Do you know Lewis Redwine?" Plaintiff objected. Defendant's counsel started to argue the question in the presence of the court and jury, whereupon the court, of its own motion, sent out the jury, and stated, in presence of counsel for defendant, that the court did not intend, if it could help it, to allow any testimony relating to Lewis Redwine's defalcation as cashier of the Gate City National Bank to get in before the jury, directly or indirectly, as he considered it illegal, incompetent, and irrelevant testimony. The court then requested the counsel for defendant to propound, while the jury was out, any other questions bearing upon this matter, so that the same could be disposed of while the jury was out. This the defendant's counsel declined to do, insisting that they had the right to ask the question, and have a ruling on it in the presence of the jury. The court then had the jury brought back into the court room. Defendant's counsel then asked said witness if Lewis Redwine, the cashier of the Gate City National Bank, had not been sent to the penitentiary for irregularities in the management of the affairs of said bank. Plaintiff's counsel objected. The court sustained the objection. Whereupon counsel for the defendant stated, in the presence of the jury and court, that he proposed to show that Lewis Redwine, cashier of the Gate City National Bank, had been convicted and was now in the penitentiary for fraud committed in the conduct and management of the affairs of said Gate City National Bank. Plaintiff's counsel objected, and the jury was again sent out, when the matter of admitting the testimony in reference to the defalcation of Lewis Redwine was discussed, and the court again ruled that all testimony of this kind should be excluded from the jury. The jury was then brought back into court. Counsel for defendant then asked witness where Lewis Redwine was now. The court sustained an objection to this question. Counsel for defendant asked witness, in the presence of the jury, if Lewis Redwine was not in the penitentiary. The court sustained an objection to the question. Counsel for defendant then asked witness, in the presence of the jury, when he heard that the Gate City National Bank had gone into the hands of receivers, to which question the court sustained objection. While the jury was out as above stated, the defendant's counsel stated to the court that they expected and intended to introduce testimony to show that Lewis Redwine was cashier of the Gate City National Bank at the time said check sued on was issued; that, since the issuance of said check, the said Lewis Redwine had absconded, and had been captured and brought back, and convicted of stealing a large sum of money from said bank, and that the frauds and irregularities committed by him extended over a period of time that dated further back than the issuance of said check, and that the other officers of said bank knew that Redwine had caused the bank examiner to recount a package of money twice, in order to show that his cash balanced on the books of the bank, and did not inform on said Redwine or discharge him, and that, by reason of the fraud and defalcation of said Redwine, and the misconduct of the other officers of the bank, the bank had gone into the hands of a receiver.

Witness F. Worth testified that he was paying...