Green v. Snead

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: Green v. Snead, 101 Ala. 205, 13 So. 277 (Ala. 1893)
• Decision Date: 25 May 1893
• Parties: GREEN v. SNEAD.

13 So. 277

101 Ala. 205

GREEN v. SNEAD.

Supreme Court of Alabama

May 25, 1893

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

Action of detinue by John H. Snead against Andrew H. Green to recover possession of certain personal property claimed by plaintiff by virtue of a chattel mortgage executed to him by defendant, in which there was a verdict for defendant. From an order setting aside the verdict and granting a new trial defendant appeals. Reversed and rendered.

Brown &amp Street, for appellant.

Lusk &amp Bell, for appellee.

McCLELLAN J.

The evidence is free from conflict that Green was authorized to fill the blank left in the mortgage executed by Snead to him by inserting therein the amount of the former's debt against the latter after deducting therefrom the proceeds of certain two bales of cotton, and adding thereto the costs of a former suit between the parties. There is conflict in the testimony as to whether the mortgagee also had authority to add to the debt and costs attorneys' fees incurred by him in the former suit, and insert the aggregate of all these items in the blank space left in the instrument. For the purposes of this appeal, however, it will be conceded that the mortgagee was authorized to include and insert as a part of the amount intended to be secured the sum paid his attorney for services in the previous litigation. A satisfying preponderance of the evidence fixes the amount of the debt balance at $125. It was shown without conflict that the attorney's fee in question was $18, and the costs of the former suit amounted to $8.65. The total of these sums is $141.65. The balance of the debt which the mortgagee claimed to be due was $138.24. Adding to this the attorney's fee and court costs, the total is $164.89. No phase or tendency of the evidence shows a greater total than this, and this sum $164.89, on the aspects of the testimony most favorable to the plaintiff, marks the extremest limit of the amount he was authorized to insert in the instrument. The amount actually inserted by or for him was $167.10,-$2.21 in excess of his authority, if the evidence in his own behalf is to be taken as true, and $25.45 in excess of the amount which, according to a preponderance of the testimony, he was authorized to insert in the blank.

The general proposition that any material alteration of an instrument, after its execution, without the maker's consent, avoids it, and discharges him from all obligations depending upon it, is not controverted in this case. Montgomery v. Crossthwait, 90 Ala. 553, 8 South Rep. 498; Anderson v. Bellenger, 87 Ala. 334, 6 South. Rep. 82. Nor can it be doubted in principle or upon authority that a material, and, as between the original parties to the instrument, vitiating, alteration may consist in the filling of a blank, which the promisee is authorized to fill in a certain way, by the insertion therein of matter not covered by the authorization. 1 Amer. & Eng. Enc. Law, p 518; Toomer v. Rutland, 57 Ala. 379. And as any change of the amount intended to be evidenced by a writing, whereby it becomes nominally a promise to pay either a greater or less sum than that originally expressed is a material, and therefore vitiating, alteration, (1 Amer. & Eng. Enc. Law, p. 508,) so, in principle, where the amount is left blank, and the...