Moore v. Williamson

• Decision Date: 28 June 1923
• Docket Number: 8 Div. 554.
• Citation: 210 Ala. 427,98 So. 201
• Parties: MOORE ET AL. v. WILLIAMSON.
• Court: Alabama Supreme Court

98 So. 201

210 Ala. 427

MOORE ET AL. v. WILLIAMSON.

8 Div. 554.

Supreme Court of Alabama

June 28, 1923

Rehearing Denied Dec. 13, 1923.

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Action by A. J. Williamson against Nora A. Moore and J. Z. Moore. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Sayre J., dissenting.

The instrument upon which the suit is based is as follows:

"Gurley, Ala. August 16th, 1920.

"This agreement made and entered into this the 16th day of August 1920 by and between Nora A Moore and her husband, J. Z. Moore of Madison County Ala., parties of the first part and A. J. Williamson of Madison County party of the second part, witnesseth:

"The said parties of the first part agrees to pay to the party of the second part $900.00 on January 15th 1920 for commission on the sale of the first parties farm to Daniel Bros.

"[Signed] Nora A. Moore,

"[Signed] J. Z. Moore,

"Parties of the First Part.

"[Signed] A. J. Williamson,

"Party of the Second Part.

"Witnesses:

"[Signed] C. O. Reed."

Spragins & Speake, of Huntsville, for appellants.

Cooper & Cooper, of Huntsville, for appellee.

GARDNER J.

Appellee and appellants, upon an agreement in writing which contained an unconditional promise to pay on a given date the sum of $900 for commissions on the sale of certain real estate. The defendants pleaded in short by consent the general issue, "with leave to give in evidence any matter or thing which would be good if specially pleaded." Such a plea was an authorization to the defendants to avail themselves of any special defense to the cause of action to the same extent as if specially pleaded. Allen v. Standard Ins. Co., 198 Ala. 522, 73 So. 897.

The defendants insisted, and offered evidence tending to show, there had been material alterations in the instrument upon which this suit is based subsequent to the execution thereof.

In view of this contention on the part of the defendants that the instrument sued on was altered after being signed, the trial judge ordered the original instrument introduced in evidence to be transmitted to this court with the transcript for our inspection. This instrument is set out in the report of the case, showing the alterations which appear upon its face.

J. Z. Moore, one of the defendants, testified that this paper was all "in typewriting and there wasn't any writing on the paper at all" at the time it was signed by the defendants. To further use the language of the witness, "I don't read very well, but I do know it was all in typewriting, and there wasn't a bit of pencil or pen writing on it."

The instrument purports to have been witnessed by one Reed, but there is evidence tending to show that he was not present when the instrument was signed, nor was he asked to witness the same. The instrument shows in the heading the year "1920" was changed to "1921," the words "Daniel Bros." inserted, and the due date of the paper likewise appears to have been changed from "January 15, 1920," to "January 15, 1921;" the figure "1" appearing to have been written over the figure "0" in the year 1920, as is made more clearly to appear in the reproduction of the instrument in the report of the case. Material alteration was shown. Lesser v. Scholze, 93 Ala. 338, 9 So. 273; White Sewing Mach. Co. v. Saxon, 121 Ala. 399, 25 So. 784; Winter-Loeb v. Pool, 100 Ala. 503, 14 So. 411.

As to whether or not these alterations were made before or after signing was a matter in dispute; but upon this the defendants were entitled to have the issue of fact submitted for the jury's determination. The court therefore committed reversible error in giving the affirmative charge at the plaintiff's request.

The execution of the instrument here sued upon evidently grew out of certain work done by plaintiff in procuring a sale of defendants' property to certain purchasers designated as Daniel Bros. The original contract of sale between defendants and Daniel Bros. being offered in evidence, the defendants offered to show that, at the time the instrument upon which this suit is based was executed, plaintiff had stated that, if the trade to Daniel Bros. "fell through," the defendants would owe him nothing; but the writing which they had executed contained an unconditional promise to pay on a certain date, and the court below properly excluded this evidence upon the principle that testimony of oral stipulations tending to contradict or vary written contracts are inadmissible. Miller Bros. v. Direct Lumber Co., 207 Ala. 338, 92 So. 473; Greil v. Lomax, 86 Ala. 132, 5 So. 325; ...