Dickson v. Bamberger

• Decision Date: 31 July 1895
• Citation: 18 So. 290,107 Ala. 293
• Parties: DICKSON ET AL. v. BAMBERGER ET AL.
• Court: Alabama Supreme Court

18 So. 290

107 Ala. 293

DICKSON ET AL. v. BAMBERGER ET AL.

Supreme Court of Alabama

July 31, 1895

Appeal from circuit court, Lowndes county; John Moore, Judge.

Action by Bamberger, Bloom & Co. against Dickson Bros. on a bond. Judgment for plaintiffs, and defendants appeal. Affirmed.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury, among others, the following written charges, to the giving of each of which the defendants separately excepted: (1) "The defendants would be liable on the bond named in the complaint, although there was a material alteration of the same after its execution, if the defendants had knowledge of such alteration, and, after having knowledge of said alteration offered to pay one-half due on the bond, and asked indulgence on the balance." (3) "Even if the jury find from the evidence that, after the execution of the bond by the defendants, it was altered, without their consent, the defendants will be liable thereon if, with a knowledge of such alteration, they recognized its validity by offering to pay a part of the bond, and asked time within which to pay the balance." (4) "Even if the jury should believe from the evidence that the bond named in the complaint was altered after its execution by the defendants, still the defendants would be liable thereon if they had notice or knowledge of such alteration, and, with such notice or knowledge, offered to pay one-half of the bond, and asked an extension as to the balance due thereon." (6) "I charge you, gentlemen of the jury, that if there was an alteration of the bond named in the complaint, after its execution, and that defendants had notice of such alteration and, after having such notice, they offered to pay a part of the amount due on the bond, and asked for time on the balance due thereon, this would constitute a ratification of such alteration, and the defendants would be liable thereon." (7) "I charge you, gentlemen of the jury, that even if there was an alteration of the bond named in the complaint after its execution, and that defendants had notice of such alteration, and, after having such notice, offered to pay one-half of the obligation in cash, and to secure the other half by turning over crop mortgages, this would constitute a ratification of such alteration, and the defendants would be liable thereon."

Houghton & Collier, for appellants.

Lane &amp White, for appellees.

HEAD J.

This was an action upon a bond purporting to have been executed by the defendants to the plaintiffs on the 21st day of October, 1892, and payable 90 days after date, for the sum of $700. The defense, made by plea of non est factum, was that the instrument had been materially altered, without the knowledge or consent of the defendants, after its execution, by inserting therein a place of payment. Although the record contains no replication, yet it clearly appears the case was tried as if the plaintiffs had replied a ratification, the contested questions of fact being whether the alleged alteration had been made, and, if so, whether the defendants had, with knowledge thereof, waived the same, and recognized the instrument as a valid obligation. The assignments of error necessary to be noticed relate to rulings on evidence and the giving of charges at the instance of the plaintiffs.

1. The plaintiffs introduced their agent, Carothers, as a witness and he testified that the bond had not been altered, and that it was then in the same condition as when originally signed. After one of the defendants had testified to the alteration, the following question was propounded to him by his counsel: "Is...