Brown v. Johnson

• Decision Date: 17 May 1900
• Citation: 127 Ala. 292,28 So. 579
• Parties: BROWN v. JOHNSON ET AL.
• Court: Alabama Supreme Court

28 So. 579

127 Ala. 292

BROWN v. JOHNSON ET AL.

Supreme Court of Alabama

May 17, 1900

Appeal fro circuit court, Hale county; S. H. Spratt, Judge.

Action by Johnson Bros. against William Brown. From a judgment sustaining a demurrer to defendant's plea, he appeals. Reversed.

This was an action brought by the appellees, Johnson Bros. against the appellant, William Brown; and counted upon a promissory note, alleged to have been executed by the defendant William Brown and one Bob Jackson. The defendant pleaded non est factum. The averments of this plea are sufficiently stated in the opinion. To this plea the plaintiff demurred upon the ground that the plea shows on its face that the alteration complained of was not a material alteration. The court sustained this demurrer, and the ruling of the court in sustaining this demurrer is the only question presented for review on the present appeal.

There were verdict and judgment for the plaintiffs. The defendant appeals, and assigns as error the rulings of the trial court in sustaining the demurrer of the plaintiffs to the defendant's pleas.

Thos E. Knight, for appellant.

R. M Douglas, for appellees.

HARALSON J.

The plea of defendant on which the case was tried, and a demurrer to which was sustained, presents the only question for review. The plea of non est factum set up that William Brown the defendant, gave to Johnson Bros., the plaintiffs, the note sued on against him alone, for $99.99, and after its execution and delivery to the plaintiffs, without the consent or authority of defendant, they caused or procured the note to be signed by one Bob Jackson, as a co-maker with defendant of said instrument; that at the time defendant executed and delivered the note sued on, he was the sole maker of the same, and that the addition of the name of Bob Jackson as a co-maker with the defendant thereof, was without the knowledge, consent or authority of defendant.

The question presented is one of conflicting opinion in the adjudications of courts. In Toomer v. Rutland, 57 Ala. 385, this court stated the reason of the rule against alterations in notes to be, the necessity of guarding against and punishing all tampering with the instrument the parties have entered into, and made the sole memorial and exposition of their contract. The court further said: "The motive of the creditor in making the alteration may not be fraudulent-as in the present case,-mala fides may not be imputable to him; yet as the alteration changes the legal identity and effect of the instrument, the debtor may well say it is not the contract into which he entered, and he is not therefore bound by it, and that the identity and legal effect of the contract into which he did enter, has been voluntarily destroyed by the creditor, and ceased to exist. Wood v. Steele, 6 Wall. 80, 18 L.Ed. 725. The principle does not rest on the hypothesis that fraud is an indispensable element of the alteration,-it proceeds as well on the necessity of preventing, as punishing of fraud. Glover v. Robbins, 49 Ala. 219."

At an early day in this court while holding that if an alteration be material, and made by the party claiming under it, he cannot enforce it, it was also held, that the addition of two names as makers of a several promissory note, placed there without the consent of the maker, would not avoid it, unless placed there for a fraudulent purpose. Railroad Co. v. Hurst, 9 Ala. 513.

This doctrine, however, seems to have been departed from in later decisions of this court. In Anderson v. Bellenger, 87 Ala. 334, 6 So. 82, 4 L. R. A. 680, while holding that alterations in the writing by a third person, who was not a party to it, cannot change its legal operation and effect and do not discharge the surety on the original...