Shows v. Brunson

• Decision Date: 24 January 1935
• Docket Number: 4 Div. 756.
• Citation: 159 So. 248,229 Ala. 682
• Parties: SHOWS et al. v. BRUNSON et al.
• Court: Alabama Supreme Court

159 So. 248

229 Ala. 682

SHOWS et al. v. BRUNSON et al.

4 Div. 756.

Supreme Court of Alabama

January 24, 1935

Rehearing Denied Feb. 21, 1935.

Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.

Action on promissory note by H. R. Shows and another against Annie G. Brunson and others. From a judgment for defendants plaintiffs appeal.

Affirmed.

Powell & Hamilton, of Greenville, for appellants.

Ira B Thompson, of Luverne, for appellees.

BOULDIN Justice.

Appellants H. R. and T. W. Shows, sued P. H. McQueen, Houston Foster, Annie G. Brunson, W. R. McNeill, A. J. Ryals, and O. R. Ryals upon a joint and several promissory note. The original complaint claimed the full amount of the note, $2,930.02. An amended count, on which the trial was had, claimed $1,465.01, being the first installment, due December 31, 1931; the second installment for like amount not having matured at the time the original suit was begun.

The defendants, other than McQueen and Foster, interposed a special sworn plea (A-1), alleging: "That said note which is the basis of this suit has been materially altered since its execution by them and without their authority or assent in this: That said note was payable to the Bank of Luverne and not to H. R. & T. W. Shows: and that the said note was for the sum of Fourteen Hundred Sixty-Five & 1/100 Dollars and not for the sum of Twenty-Nine Hundred Thirty & 2/100 Dollars."

The evidence on the trial was directed to the issue presented by this plea, resulting in verdict and judgment in favor of the four defendants interposing such defense.

Several rulings on the admission of evidence are presented for review.

In order to give an intelligible treatment of the several rulings, some outline of the case is deemed proper.

The original note is sent up for our inspection. A printed form was used in which "Bank of Luverne" appeared as payee. The blanks are filled in by typewriting. The pertinent parts of the note are here reproduced:

"$2930.02 Luverne, Ala. Dec. 31st, 1930.

"On the Demand day of ------, 1932, for value received, I promise to pay to H. R. & T. W. Shows or order, the sum of $ WITH INTEREST FROM DATE Two thousand nine hundred thirty ...... 02/100 DOLLARS. (Here follow printed waiver of exemptions, mortgage clause, etc., not here involved.)

"The above amount to be paid as follows $1465.01 payable Dec. 31st, 1931, and $1465.01 Dec. 31st. 1932." We have indicated the typewritten portions by underscoring. Defendants contend the only typewritten matter in the note at the time of execution was that underscored with double line; that the words "BANK OF LUVERNE" were not then Xed out.

It is not contended by either side that the note was signed with blanks to be later filled in. Plaintiffs contend that the note, as it now appears, was filled out by plaintiff, H. R. Shows, and handed to McQueen, the principal maker, for execution with sureties; while litigating defendants contend that the payee was "BANK OF LUVERNE" and the amount payable $1,465.01 when executed by them.

Without question the consideration for the note was the price of certain county warrants, or officers' script on the fine and forfeiture fund of Crenshaw county.

P. H. McQueen, as sheriff, had become indebted to the county. It was agreed that the county would accept such warrants or script at face value on such indebtedness. Evidence tended to show the balance then due the county was $2,930.02, the amount of the note sued upon. McQueen, as a witness for plaintiffs, testified the note was filled out as it now appears when he obtained the signatures of the other parties as sureties. On cross-examination he was asked what those warrants were worth at that time.

The overruling of plaintiffs' objection is the first ruling presented in argument.

While the evidence presented to that time did not clearly disclose the relevancy of such testimony, some later evidence tended to show that during the negotiations between McQueen and plaintiffs, as dealers in such claims, it was understood he should have warrants or script at 50 cents on the dollar, which would be acceptable to the county at face value. The market value of such paper was, therefore, a legitimate inquiry on an issue as to whether the original note signed by defendants was filled out on a basis of 50 cents on the dollar, or for full face value, or substantially so.

Plaintiffs' version was that the county warrants were sold at prices which had been paid for them, with 8 per cent. interest thereon; and the total face value of the warrants turned over to McQueen was approximately $3,103.08.

H. S. Broom, a witness for defendants, testified that as public examiner of accounts, he participated in the proceedings to settle the balance due from the sheriff, McQueen, to the county; that he saw a note in McQueen's hands filled out as per the defendants' plea; that the instrument was unsigned at the time; that he could not swear it was the same paper now sued upon, but in his best judgment it was.

The fact that the paper seen in McQueen's hands was unsigned is stressed as a ground of objection to the witness giving his best judgment.

Whether witness had such observation of the document as to enable him, with other circumstances known to him, to form a judgment on the matter, was for the witness to determine. That the document was then unsigned goes to the weight of his testimony.

In the absence of evidence that McQueen ever had any other than this document filled out for signature, we think the admission of this evidence was without error.

W. F. Ryals, witness for defendants, testified he was present when his son, O. R. Ryals, signed the note; that this was in the open, the paper being placed on the fender of an automobile; that witness looked over his son's shoulder while he was signing; that the note was then payable to Bank of Luverne; that plaintiffs' names had not been filled in; that the amount was then $1,465.01, but is double that now.

The record recites the following in course of the cross-examination of this witness:

"Witness was here asked the following question:

"'You didn't read the note, you just glanced at it, didn't you, Mr. Ryals?'

"Witness answered: 'Just looked over it and saw what it was.'

"Continuing the witness testified as follows:

"'I do not wear glasses all the time. I don't remember whether I had my glasses with me that day. I think I did. In the light I can read without my glasses-I am not positive about that-not positive whether I had my glasses on.'

"Witness was here asked the following question:

"'You don't wear your glasses except when you want to read?'

"He answered: 'Yes, sir, but I can read out in the light without them.'

"Witness was then asked the following question:

"'But you can tell what was on there in this Court room?' "He answered: 'Not good, I can't.'

"Plaintiffs' attorney here requested the witness to go over by the window in the Court House which was by the jury. The witness went as requested. Plaintiffs' attorney then made the following request of the witness: 'Now read that note to the jury, please, sir.'

"Thereupon the attorney for the defendants objected, stating at the request of the Court the following grounds of objection:

"'It don't show the same conditions-has nothing to do with it. He says he doesn't know whether he had his glasses or not and he is three or four years older and he might not be able to read it now. It is not under similar circumstances.'

"Thereupon the Court sustained the objection. Attorneys for pla

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