Payne v. Long , 121 Ala. 385 ( 1898 )

HARALSON, J.

— 1. The defendant pleaded four pleas, numbered 1, 2, 4 and 5, upon which, and upon the replications to the 4th and 5th, the case was tried. The 1st was the general issue, the 2d, payment, and the 4th and 5th set up an alleged alteration in the note sued on. Tbe plaintiff moved, to strike tbe fourth plea, which motion was overruled, and he demurred to it, and the 5th plea, which demurrers were overruled.

The alleged alteration set up in the 4th plea was, that after defendant “signed said note sued on, and before it ° was delivered, the defendant added thereto on the same piece of paper on which the note was written, a memorandum in writing qualifying said instrument in substance as follows: 'subject to a settlement between us; * * * that after said note was delivered to plaintiff, he said plaintiff or his authorized agent, without the knowledge or consent of defendant, altered said note by detaching said memorandum.” The words, “subject to a settlement between us,” were not a part of the note, but were written separate therefrom, on the same piece of paper. The principle is familiar, that when a contract is reduced to writing, all previous agreements and negotiations between the parties in reference to the subject-matter of the contract are merged in the writing, and in the absence of fraud or mistake are considered as abandoned. Littlefield v. Falconer, 2 Ala. 280; Thomason v. Dill, 30 Ala. 444; Clark v. Hart, 49 Ala. 86. If there remain any unsettled matters between the parties to a note at the time of its execution and delivery, not embraced in it, they may well incorporate in the instrument, a provision to that effect, to limit, in its settlement, the operation of the aboye rule. The incorporation in a note — after the promise to pay on a specified day the sums named therein — the words, “subject to a settlement between us,” plainly enough indicates that there is something unsettled between the parties not im eluded in the note, and which may be brought forward on its settlement, and such words constitute a material part of the note which cannot be stricken by the payee without consent of the maker. If the facts averred in the 4th amended plea are true as alleged, — as will more fully appear hereafter, — they constitute a good defense, and the motion to strike the plea, and the demurrer to it,' were properly overruled.

2. The 5th is in form a plea of non est factum, averring that the note sued on was not executed by the defendant, or by any one authorized to bind him, because the plaintiff, “without the knowledge or consent of the' defendant, with a fraudulent intent, altered said nóte by detaching therefrom • a material memorandum, which said memorandum was as follows.” Here the plea ends. Then follows defendant’s affidavit that- it is true, -of date Aug. 22d,T895. After this,'appear these words: “This note is subject to an adjustment about the number of acres included in the deed from Payne to me. Piled in office, Aug. 25th, 1895.- 0. 0;'Kelly, Clerk.”- The plea did not set out the memorandum; and was subject to the demurrer interposed to it;

'■•■■3. The plaintiff was thus forced-to try on this defective-plea. ’As to the plea, in view of another trial,- — if thé alleged alteration shall -be presented in another and proper form,- — it may be well to notice the’ legal -question growing out of the alleged' alteration. It is well settled in this court,- “that any material- alteration, by One not a stranger do the paper, whether injurious or not, avoids the contract as to all parties hot consenting. It is-enough, that if • the instrument were- genuine, it would operate differently from the original; or as otherwise expressed, avoidance will result, if the alteration is one which causes the papér to speak a language different in legal • effect from . that which- it originally spoke.” Montgomery v. Crossthwait, 90 Ala. 553, 570.

' If the alleged memorandum had been incorporated in the note at the time it was executed, it is- scarcely open to doubt, that it would have been a material part of it, and could not have been stricken or erased by the holder, thé maker not consenting, without avoiding -the -note. As a result of the-adjudications on-the subject, which appear to -us to be sound, we find the following rules -stated-inthe ■Encyclopaedia, -touching the removal or addition of mem-oranda to notes. “A memorandum which is collateral to, or independent of the contract or promise, forms no part of: it, whether written On the same paper or -not. ■ And the removal of a mere memorandum written on a bill or note, and not constituting any part of the writing, does not amount to a material alteration thereof.- -A promissory note -is not materially-altered by writing thereon a memorandum which is purely collateral to and independent of the promise or contract which it contains; * * Generally speaking, every indorsement or-memorandum attacked to a writing, with tke knowledge of tke parties at tke time of its execution, is as muck a part of suck .writing as if it kad been contained in tke body of-the instrument. Hence where a note has a memorandum or contract of this- kind, which qualifies its terms, written upon or attacked to it, tke obliteration or- severance of suck memorandum or contract is a material alteration of tke note.” -2 Am. & Eng. Ency, Law (2d ed.), pp. 226-227. '

4. That part of tke deposition of tke defendant taken orally before tke register in tke case of himself against plaintiff’s.intestate, F. M. Payné, pending in tke chancery court of Walker, was clearly inadmissible,’ on objections raised to it by plaintiff. - ‘ It was not shown that tke witness was examined under oath, nor that tke opposite party kad tke power to cross-examine- and was legally called on to do so, which were essential prerequisites to its admissibility. Am. U. Tel. Co. v. Daughtery, 89 Ala. 195; 1 Gr. Ev. § 163.

It is to be. observed, that tke deposition of plaintiff’s testator, F. M. Payne, in said chancery suit,’kad been introduced by tke plaintiff without ■ objection on tké part of defendant. Whether it Avas competent evidence, if it kad been objected to, or whether, if- illegal and admitted without objection, tke defendant kad tke right to rebut it by.tke introduction of his own deposition taken in said chancery suit, are questions we do -not now decide; but as bearing on tke question we may refer to Boykin v. Smith, 65 Ala. 299; Miller v. Cannon; 84 Ala. 59; Hodges v. Denny, 86 Ala. 228; Davidson v. Rothchild, 49 Ala. 104; St. Clair v. Orr, 16 Ohio St. 220; Quick v. Brooks, 29 Iowa 484; Lacock v. Commonwealth, 99 Penn. 207; Neis v. Farquhason, 37 Pac. Rep. 697, s. c. 9 Wash. 908.

5. Tke defendant when offered as a witness for himself in this case, was under section’1794 (2765) of the Code incompetent to testify as to any conversation or transaction between -himself and plaintiff’s intestate, if -objection kad been made at tke time by tke plaintiff. The bill of exception states, that this evidence, which is set out, “was introduced without objection to any of tke questions which elicited it, or to the answers, but after it was all in, plaintiff moved to exclude it on the ground that it tended to prove a statement or transaction by de-defendant with plaintiff’s testator.” He was not entitled as a matter of right to have it excluded —Billingslea v. State, 96 Ala. 126; McCalman v. State, Ib. 98.

■ A ratification of the alteration of an altered instrument by the parties to it will restore it as altered, without new consideration. — 1 Am. & Eng. Ency. Law, 521. The statement of the witness, Estes, which the court refused to admit, was shown by the witness to have been made at the request of defendant and plaintiff’s testator, that he should make it out and give a copy to each of them, showing the amount due on the note sued on, which statements he made, the one being an exact duplicate of the other, and gave one to each of the parties. This statement contained the credits the plaintiff’s intestate allowed. The defendant claimed another credit, in addition to those entered on the note, as shown by said statement, which plaintiff’s intestate admitted, and it was then and there entered on the note by the witness at the defendant’s request. ' And at that time — January 23d, 1895 — after defendant knew the alleged memorandum had been separated from the note, he paid thereon the sum of $50, ivhich was also entered on the note and in said statement at defendant’s request, leaving a balance of $787.53. This paper was merely an incidental and collateral fact, tending to establish the main issue, and was clearly admissible, certainly to show ratification of note after the alleged alteration. — 3 Brick.. Dig. 439, § 486. If the- defendant made payments on said note, after he knew of the alleged separation of said memorandum from the note, this would amount to a ratification of the act, and estop him from setting it up as avoiding the note. — 2 Am. & Eng. Ency. Law (2nd ed.), 261, and authorities cited.

6. There was, of course, no room for the general charge requested by plaintiff.

His third charge was properly refused. It did not hypothesize that the past payments referred.,do were made at a time when defendant had full knowledge or information of the alleged alteration in the note.

The remaining charges requested by plaintiff were free from error, and should have been given.

7. The 1st and 2d charges given at the request of defendant were faulty in referring to the jury the question of the materiality of the alleged alteration. — 2 Am. & Eng. Ency. Law (2nd ed.) 269. .

It is unnecessary to consider the 3d, based on the 5th plea held to be bad.

For the errors indicated, the judgment is reversed and the cause remanded.