Birmingham Nat. Bank v. Bradley

• Decision Date: 15 June 1897
• Parties: BIRMINGHAM NAT. BANK v. BRADLEY. [1]
• Court: Alabama Supreme Court

23 So. 53

116 Ala. 142

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

Supreme Court of Alabama

June 15, 1897

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

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

This is the third appeal in this case. There was no new testimony on the last trial, but the issue was narrowed down to the one question left open by this court in its decision on the former appeals, and the assignments of error have been substantially passed on by the court in its former decisions. Bank v. Bradley, 103 Ala. 109, 15 So. 440; Id., 108 Ala. 205, 19 So. 791. The appellant, the Birmingham National Bank, sued John G. Bradley, on a draft or New York exchange for $4,000. It was alleged by the plaintiff that said draft was originally issued on February 23, 1892, by the Gate City National Bank of Atlanta, on the National Park Bank of New York, payable to James Fix, in the sum of $2; that said check had been altered since the issuance by erasing the date "2/23," and the figure "2," after the figures "189," and rewriting the same date and figures exactly; also changing the amount of said draft, both in the writing and figures, from $2 to $4,000, and changing the name of the payee, "James Fix," to "John G. Bradley." In fact, it was alleged that every letter and figure in the check had been erased and altered, except the signature of A. W. Hill, whose name was signed to the check. It is alleged that in such altered condition the defendant, John G. Bradley, indorsed said check or draft, and the plaintiff paid the same; that payment by the drawee had been refused on account of such alleged alteration. It was further alleged that Bradley had been notified of the alleged alteration, and of the refusal to pay said check, and that after such notification Bradley promised to pay the same. The plaintiff's complaint contains seven counts. The first count sets out substantially the allegations above set forth. The second count is about the same as the first count, except that it does not aver that payment of the check was refused but that said check was duly credited to plaintiff by the National Park Bank, and was afterwards charged back to plaintiff when the alleged alteration was discovered. The fourth, fifth, and sixth counts are the common counts. The seventh is a new count, added since the last trial of this case. It alleges no new material facts, but merely goes into a detailed and discursive statement of the evidence relied upon for a recovery by the plaintiff, and alleges a promise by the defendant to pay the said check after notification of the alleged alteration. The defendant pleaded the general issue and payment; but, under the former rulings of this court, the case was tried upon the general issue. Under the opinion on the present appeal, it is deemed unnecessary to set out in detail the facts of the case. During the course of the argument before the jury by Daniel A. Greene, Esq., one of the attorneys for the defendant, he stated to the jury that the officers of the Gate City National Bank were interested on account of said check; that said Gate City National Bank was liable on account of said check to the plaintiff. To this part of the argument plaintiff objected and duly excepted to the court's overruling his objection. The said attorney for the defendant further argued to the jury that Lewis Redwine, cashier of the Gate City National Bank, was ominously silent; that "interrogatories were propounded to him, which were not answered, or, if answered, were not read to the jury by counsel for the plaintiff." To this portion of said attorney's argument the plaintiff objected, and duty excepted to the court's overruling its objection. The bill of exceptions then recites: "After the above argument was concluded, B. M. Allen, the other attorney for the defendant, after commenting on the same line that Mr. Greene had followed, in reference to the liabilities of the officers of the Gate City National Bank itself, he turned to the court, and stated that he didn't want to do anything wrong, and wanted to know if he would be permitted to read to the jury the interrogatories that had been propounded to Redwine. The court then asked if plaintiff's counsel had any objection. Plaintiff's counsel said that they did object. Later on, however, Mr. Allen, attorney for the defendant, argued that it was a suspicious circumstance that Redwine had not been examined." The plaintiff requested the court to give to the jury the following charge, and duly excepted to the court's refusal to give the same as asked: "If you believe the evidence, then you will find in favor of the plaintiff." There was verdict for the defendant. Thereupon the plaintiff made a motion for a new trial, upon the following grounds: (1) That the general affirmative charge requested by it should have been given; (2) because the verdict of the jury was contrary to the evidence; (3) that the court erred in allowing the portion of the argument of Daniel A. Greene, Esq., to which exceptions were reserved; (4) the court erred in its rulings in reference to the argument of B. M. Allen, Esq. This motion was overruled, and judgment was rendered for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Mountjoy & Tomlinson and Walker, Porter & Walker, for appellant.

Dan'l A. Greene, O. W. Underwood, and B. M. Allen, for appellee.

McCLELLAN J.

The issue below was whether the paper confessedly issued by the Gate City Bank was altered as to amount and payee before it was presented to and cashed by the Birmingham National Bank. Leaving out of view for the moment the fact that the paper itself bears no evidence of alteration, it is shown about as clearly and conclusively as the nature of the case admitted of, and as oral testimony and attendant circumstances could show, that the check as issued was for the sum of $2, payable to James...