Craig v. National City Bank of Memphis

• Decision Date: 20 January 1921
• Docket Number: 11547.
• Citation: 105 S.E. 632,26 Ga.App. 128
• Parties: CRAIG v. NATIONAL CITY BANK OF MEMPHIS.
• Court: Georgia Court of Appeals

105 S.E. 632

26 Ga.App. 128

CRAIG v. NATIONAL CITY BANK OF MEMPHIS.

No. 11547.

Court of Appeals of Georgia, Second Division

January 20, 1921

Error from Superior Court, Gwinnett County; Andrew J. Cobb, Judge.

Action by the National City Bank of Memphis against F. G. Craig. Judgment for plaintiff, and defendant brings error. Reversed.

Kelley & Kelley, of Lawrenceville, for plaintiff in error.

O. A Nix, of Lawrenceville, for defendant in error.

JENKINS P.J.

1. The defense of non est factum can be successfully pleaded to a suit on a negotiable promise to pay, even as against a bona fide holder for value, who took it prior to maturity and without notice of such defense. Civil Code 1910, § 4286. Thus a valid and completed contract can only be enforced against the maker in the form in which it was expressed, and if such a completed instrument be intentionally, fraudulently, and materially altered by a person claiming a benefit under it the alteration voids the whole contract at the option of the opposite party. Atlanta National Bank v. Bateman, 21 Ga.App. 624, 94 S.E. 853 (2); Civil Code 1910, § 4296.

2. Alterations, even though apparent on the face of an instrument, are ordinarily presumed to have been made prior to its execution (Thrasher v. Anderson, 45 Ga. 538 544), but where a material alteration appears on the face of an instrument, and a special plea of non est factum, under oath, is entered, admitting the signing of the paper, but plainly and distinctly attacking the instrument as having been intentionally and materially altered, after its execution, by a person claiming a benefit under it, and with intent to defraud the defendant, this presumption no longer prevails, and the time when, the person by whom, and the intention with which such apparent change was made become questions of fact to be determined by the jury under the evidence submitted (Civil Code 1910, § 4297), and such a plea, entered upon oath, casts upon the plaintiff the burden to establish by proof the execution of the writing as sued on, or, in the event he cannot do this, to enforce the contract as originally entered upon by showing that such apparent and material alteration was made unintentionally or by mistake, or without any intent to defraud, or was made by a stranger to the transaction, without collusion with the plaintiff or one in privity with him. Winkles v. Guenther, 98 Ga. 472, 474, 25 S.E. 527; Wheat v. Arnold, 36 Ga. 479; Simons & Co. v. McDowell, 125 Ga. 203, 53 S.E. 1031; Mozley v. Reagan, 109 Ga. 182, 34 S.E. 310; Thompson v. Kelsey, 8 Ga.App. 23, 68 S.E. 518 (4); Wilson v. Barnard, 10 Ga.App. 98, 72 S.E. 943; Civil Code 1910, §§ 4297, 5831.

Where the defendant, by such a special plea of non est factum admits the execution of the instrument, but...