Glover v. Gentry

• Citation: 104 Ala. 222,16 So. 38
• Parties: GLOVER v. GENTRY ET AL.
• Decision Date: 20 June 1894
• Court: Supreme Court of Alabama

16 So. 38

104 Ala. 222

GLOVER v. GENTRY ET AL.

Supreme Court of Alabama

June 20, 1894

Appeal from circuit court, Jackson county; John B. Tally, Judge.

Action by Samuel H. Glover against Gentry and Moore, administrators of the estate of William Moore, deceased. From a judgment for defendants, plaintiff appeals. Reversed.

The plaintiff introduced in evidence the note which was the foundation of the suit, and which showed on its face that it was executed to William Moore on July 9, 1888, and payable one day after date, for $1,250. Mrs. A. A. Glover, the wife of the plaintiff, was introduced as a witness, and testified that she had seen the note sued on in this suit often, and identified the note introduced in evidence. She was then asked by the plaintiff the following question: "Did you see that note signed?" The witness answered, "Yes sir; I did." To this answer the defendants objected, on the ground that said witness was a party in interest in said suit, and could not be permitted to testify to a transaction with or statements by the deceased, and moved to exclude said testimony. In connection with this motion of the defendant the witness further testified: "That her husband, the plaintiff, had transferred the note to her, provided witness would pay over money to plaintiff, which was owing to witness by her brother; that witness was expecting her money from her said brother; that the husband of witness failed to get either money or security from her brother on said debt so due her from her said brother, although he had made an effort to do so; that witness had formally recanted that trade that morning, a few minutes before the time witness was testifying; that the same was evidenced by writing, which said writing was offered in evidence." The writing thus referred to was not set out in the bill of exceptions. On cross-examination the said witness further stated that she had voluntarily recanted and trade without the advice of her attorney. Upon this evidence the court granted the motion of the defendants, and refused to allow said witness to testify on the ground that she was a party in interest, and to this action of the court the plaintiff duly excepted. One of the disputed issues of fact on the trial of the case was, whether the note was for $1,250 or $50. The testimony for the defendants tended to show that the words "twelve hundred and" had been written in the note after its execution and there were several witnesses introduced who testified that the words "twelve hundred and" were written at a different time and with different ink from the other parts of the note. The tendency of the testimony of these witnesses is sufficiently stated in the opinion. The testimony for the plaintiff, in reference to this disputed fact, was in direct conflict with that of the defendants, and tended to show that the note introduced in evidence was the same as it was when executed by the said William Moore, intestate of the defendants. In reference to the transfer of the cause of action, based on the note so sued on by the said S. H. Glover and his wife A. A. Glover, the plaintiff as a witness testified, that his wife's brother was indebted to her in the sum of $2,000, which she had been been unable to collect from him, and that he agreed with his wife, that he would deliver to her the note here sued on if she would assign to him her claim against her brother, and that after such agreement, he delivered to the clerk of the court the paper which is copied from in the opinion, showing that he had transferred the cause of action to A. A. Glover, his wife. There was much testimony introduced in behalf of the defendants, tending to show that their intestate had never borrowed the amount for which the note sued on was given, and that the said plaintiff was never in a position, pecuniarily, to lend the said amount of money. There were several exceptions reserved to the rulings of the court on the evidence, and the facts in reference thereto are sufficiently stated in the opinion. The plaintiff requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence they should find for the plaintiff for the note and interest." (2) "The burden of proof is on the defendants to show to the reasonable satisfaction of the jury, that the note has been changed since it was signed without the consent of the payor, Moore." (3) "If the jury find from the evidence on examination, that the words, 'twelve hundred and,' were written in the note at a different date and in a different ink, or either, still the burden is on the defendant to show that this was done after it was signed." (4) "The law presumes that the note was signed as it now is, unless the evidence shows to the reasonable satisfaction of the jury that the note was changed after it was signed." (5) "The jury should receive with great care the conversations which witnesses undertake to detail before them, as, for illustration, the conversation which occurred between Green Moore, and plaintiff, at the graveyard at the burial of William Moore, in which said Moore says, that in said conversation, Glover, the plaintiff, said, that he supposed that the old man died pretty near even with the world, so far as he knew he owed nothing except what he owed the plaintiff, and that he (Moore) owed him (plaintiff) very little, or words to that effect, while on the other hand Glover claims that he told said Green Moore that he supposed William Moore owed very little except what he owed him; as the unintentional changing or transposition of a word or phrase, might very materially alter or change the real import of the language used by the party. Such evidence is subject to much imperfection." At the request of the defendants, the court gave to the jury the following written charges, and to the giving of each of them the plaintiff duly excepted: (1) "The burden of proving a disputed fact rests on the party affirming its existence and claiming benefit from it. The plaintiff is bound to make good his case, so far as it is denied by defendants, by satisfactory proof." (2) "The burden of proof is on the plaintiff, and the evidence must be sufficient to satisfy the minds of the jury; mere preponderance, unless it produces that result, is not sufficient." (3) "If the evidence leaves the disputed fact, the execution of the note for 'twelve hundred and fifty dollars,' in doubt and uncertainty, the issue must be found in favor of the defendants." (4) "The voluntary alteration of a note or bond or other instrument under seal, in a material part, to the prejudice of the obligor or maker, avoids it, unless done with the assent of the parties to be affected by it, and the motive with which the alteration is made does not change its effect, and if the jury believe from the evidence that the words, 'twelve hundred and,' were added or inserted into the note without the knowledge or assent of Moore, after the note was signed by him, if the jury believe he signed it, it matters not what the motive or reason for the change was, the act would vitiate the note and the jury should find for the defendants." (5) "The policy of the law in excluding the evidence of a party about transactions with or statements by a deceased party, whose estate is sought to be charged, is that no one should be heard to testify of a transaction with or statement by another who had in the meantime died, and hence could not confront, and perchance contradict the evidence given against him or his estate."

J. E. Brown, for appellant.

R. C. Hunt and J. B. Ashley, for appellees.

HARALSON J.

1. If the note alleged to have been executed by the deceased William Moore, to the appellant, the plaintiff below, was never transferred by him to his wife, Mrs. A. A. Glover, she was a competent witness for her husband in the suit, O'Neal v. Reynolds, 42 Ala. 198; Davis v. Tarver, 65 Ala. 101. If the note, however, was transferred to her by her husband, she as well as as he, comes within the spirit and policy of the statute, and was not competent to testify. Boykin v. Smith, Id. 294; Hodges v. Denny, 86 Ala. 228, 5 So. 492; Miller v. Cannon, 84 Ala. 63, 4 So. 204; Goodlett v. Kelly, 74 Ala. 218. The evidence of...