Winter v. Pool

• Decision Date: 08 November 1894
• Parties: WINTER ET AL. v. POOL. [1]
• Court: Alabama Supreme Court

16 So. 543

104 Ala. 580

WINTER ET AL. v. POOL. ^[1]

Supreme Court of Alabama

November 8, 1894

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

This was an action brought by the appellants, Winter & Loeb, a partnership doing business in the city of Montgomery, against James A. Pool; and counted upon a promissory note, executed by the defendant, which had been purchased by the plaintiffs. The defendant filed a special plea of non est factum, which was properly sworn to. The facts of the case, as to the alteration of the note, are substantially the same on this appeal, as they were on the former appeal, and found reported in 100 Ala. 504, 14 So. 411. The only ruling of the trial court, which is assigned as error on the present appeal, is the sustaining of the defendant's demurrer to the plaintiffs' replication to the plea of non est factum. There was judgment for the defendant, and the plaintiffs appeal. Reversed.

E. P Morrissett, for appellants.

A. A Wiley, for appellee.

HARALSON J.

1. On the former appeal in this case, we held that the alleged alteration of the note sued on, was a material one, in that it converted a nonnegotiable into a negotiable note; that if altered in the manner alleged, prima facie, no recovery could be had on it; that upon proof that the paper had been altered, the burden would be cast upon the plaintiffs to overcome its presumed invalidity; that this they might do, by showing that the alteration was made by the consent of the promisor, or by a stranger having no interest in it, and without such proof, no recovery could be had upon it.-Winter v. Pool, 100 Ala. 504, 14 So. 411; Montgomery v Crossthwait, 90 Ala. 533, 8 So. 498; Anderson v Bellenger, 87 Ala. 336, 6 So. 82; Davis v. Carlisle, 6 Ala. 709. No question of ratification by the defendant of the alteration, after it was made and discovered, was involved in the former appeal, nor in this one.-Montgomery v. Crossthwait, supra.

2. When the cause, on reversal, returned to the circuit court, the plaintiffs filed a replication to the plea of non est factum in which they did not set up that the alleged and admitted alteration in the note, had not been made with the consent of the promisor, or that it was made by a stranger having no interest in it,-facts necessary to be averred and pleaded by them as was held, if they relied upon them for recovery; but they did allege, "that the note here sued on, was a printed blank, filled out in writing, that said printed blank contained the words in print, 'payable at the bank of,' with a blank space following said printed words, of sufficient length to permit the insertion of a designated place of payment, and that said blank place was not marked by the defendant or drawn across with a pen; but said note was signed by the defendant, and put in circulation with this blank space open;" and it was averred, "that this was negligence on the part of defendant, and by reason of such negligence, some person, to the plaintiffs unknown, and without the knowledge, consent or connivance of plaintiffs inserted in said blank the words, 'Montgomery, Ala.'; that there is a 'Bank of Montgomery' doing business in the...