Bouldin v. Barclay
| Decision Date | 16 May 1899 |
| Citation | 25 So. 827,121 Ala. 427 |
| Parties | BOULDIN v. BARCLAY. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Jackson county; J. A. Bilbro, Judge.
Action by Virgil Bouldin, as trustee, against James P. Barclay on notes. There was a judgment for defendant, and plaintiff appeals. Reversed.
The defendant filed a plea of non est factum, in which he averred "that the notes upon which the action is founded were not executed by him, or by any one authorized to bind him in the premises." This plea was verified by the defendant's affidavit. On the trial of the case, W. R Ivey and other witnesses for the plaintiff testified that the notes sued on were executed and signed by the defendant, and that there had been no alteration or change in them, in any respect, since their execution. In response to questions asked on cross-examination, the said W. R. Ivey and the other witnesses testified that the words "bearing interest from date" were written in said notes before they were executed by the defendant. The defendant, as a witness in his own behalf, admitted that the notes sued on were signed by him; but he testified that the words "bearing interest from date" were not in them when they were executed. Another witness for the defendant, who was shown to have executed notes similar to those sued on, testified that in his notes there was no provision for the payment of interest from date. In his general charge to the jury, the court instructed them, among other things, as follows: "The burden of proof is on the plaintiff to show that the notes sued on were executed by the defendant as they now appear and that there has been no material alteration in them since they were executed." The plaintiff duly excepted to this portion of the court's oral charge, and also separately excepted to the court's refusal to give each of the following written charges requested by him: (1) "The notes sued on, not showing any suspicious alterations on their faces, the burden of proof is on the defendant to show any material alterations therein." (2) "The court charges the jury that the burden of proof is on the defendant in this case to reasonably satisfy the jury that the notes have been altered as alleged." There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.
Martin & Bouldin, for appellant.
R. W Clopton, for appellee...
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First National Bank v. Ford
...court); Fudge v. Marquell, supra. In Alabama the law on this subject is the same as in the three states just mentioned. Bouldin v. Barclay, 121 Ala. 427, 25 So. 827; Yancy v. Gordon, 172 Ala. 439, 55 So. 239, Ann. 1913E 251. In fact, the rule in the majority of states, some of the courts do......
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Ehl v. J.R. Watkins Medical Co.
... ... on the defendant to show the pleaded alteration. Code of ... 1923, § 7662; Bouldin v. Barclay, 121 Ala. 427, 25 ... Under ... either form it is permissible for the defendant to show ... material alterations which will ... ...
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Chitwood v. Blackwood
... ... it, unless the instrument shows evidence of suspicion in that ... respect. Ehl v. Watkins Med. Co., 216 Ala. 69, 112 ... So. 426; Bouldin v. Barclay, 121 Ala. 427, 25 So ... 827. It may be noted also that section 7717, Code, does not ... impose on appellees the burden of accounting ... ...
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Turner v. Birchfield
... ... it presents the question as to burden of proof as to ... alteration of the instruments, and cite numerous authorities, ... among them Bouldin v. Barclay, 121 Ala. 427, 25 So ... 827; Ehl v. Watkins Med. Co., 216 Ala. 69, 112 So ... 426; 1 Greenl. on Ev. § 564; Barclift v. Treece, 77 ... ...