Wheat v. Arnold

• Decision Date: 31 December 1867
• Citation: 36 Ga. 479
• Parties: AUGUSTUS W. WHEAT, plaintiff in error. v. CHARLES W. ARNOLD, defendant in error.
• Court: Georgia Supreme Court

36 Ga. 479

AUGUSTUS W. WHEAT, plaintiff in error. v. CHARLES W. ARNOLD, defendant in error.

Supreme Court of the State of Georgia

(Milledgeville, Dec. Term, 1867.)

Assumpsit. Motion new trial. Decided by Judge Underwood. Campbell Superior Court. February Term, 1867.

Arnold sued Wheat on the following promissory note: "$1,147.79.

Atlanta, Georgia, March 8th, 1858.

Twelve months after date, I promise to pay to Thomas Bullard's order, at the Bank of Fulton, the sum of Eleven Hundred and Forty-seven Dollars and Seventy-nine Cents, for value received. A. W. Wheat."

Endorsed: —"Thomas Bullard, "

"Richard Moore, "

"J. C. Danforth."

The plea was that "said note has been altered and changed since he signed and delivered the same, without his knowledge or consent, in this, that the figure and letter '8th' following the word 'March' in said note, have been inserted since the signing and delivery of the same, and the words 'forty-five dollars and twenty-nine cents' in the body of said note have been erased, and the words 'forty-seven dollars and seventy-nine cents' interlined and written, instead of the first words aforesaid, and without the knowledge or consent of defendant." This plea is verified by Wheat's affidavit.

When the note was tendered in evidence, it was objected to *on the ground that it "had been altered, erased and interlined, and antedated and increased to a larger amount after it had been signed and delivered by defendant and accepted by J. D. Lockhart, the then owner, " &c. The objection was overruled, and the note (and notarial protest) were read in evidence.

Plaintiff then examined William Aderhold, who testified, that he was, at the date of the note, defendant's chief clerk; he saw the note signed, sealed up in an envelope and mailed to J. D. Lockhart, Atlanta, Georgia; that the words "forty-five dollars and twenty-nine cents" in the body of the note were not erased, and the words "forty-seven dollars and seventy-nine cents" interlined in lieu of them, and the figure "8" following "March" was not inserted in said note, but was a blank when the note was mailed.

A copy of original bill of goods was exhibited to witness, which was dated 22d of March, 1858, (in whose favor, against whom or for what amount the bill was, does not appear by the record); and witness stated that that was the date of the purchase of the goods; he saw them packed and was present at their reception, and said bill was not otherwise settled for than by the giving of said note, and the words "forty-five dollars and twenty-nine cents" were erased, and the words "forty-seven dollars and seventy-nine cents" were interlined after said note was given—which can be seen by reference to the note.

The evidence having closed, the Court charged the jury that if a written contract be altered intentionally and in a material part thereof, by a person claiming a benefit under it, with intent to defraud the other party, such alteration voids the whole contract, at the option of the other party. If the alteration be unintentional, or by mistake, or in an immaterial matter, or not with an intent to defraud, if the contract as originally executed, can be discovered and is still capable of execution, it will be enforced by the Court. If the alteration be made by a stranger, and not at the instance or by collusion of a party or privy, if the original words can be restored, thecontract will be enforced.

*"The alteration in this case being as to the date and the amount of the note, is material, and that is a question for the Court and is a question of law, and I charge you and decide it to be material. The fact of the alteration and the intention with which it was made, are facts for the jury to find. In order to avoid this contract, the jury should believe that the alteration was made with intent to defraud the other party, by the party claiming a benefit under it, as a privy of such party.

"If you believe, from all the evidence in the case, that the alteration was made without any fraudulent intent, and that the contract as originally executed can be discovered and is capable of execution, it should be enforced; or if the alteration were made by a stranger, and not at the instance or by collusion of the party or a privy, if the original words and date can still be restored, the contract should be enforced. Fraud will not be presumed but must be proved, but may be proved by circumstances. You will consider and weigh all...