Howard Piano Co. v. Glover , 7 Ga. App. 548 ( 1910 )

Powell, J.

(After stating the foregoing facts.)

1. Where the plaintiff declares on a contract in writing and the defendant denies the execution of the paper thus sued on, or claims that the paper as then existing and declared on is not in the condition in which it was when it was signed, he must file his denial under oath, by a plea of non est factum, or a plea in the nature of a plea of non est factum. Civil Code of 1895, §3701. However, where the instrument is not declared on and is merely offered as part of the evidence in the case, the other party may attack it as a forgery, without pleadings, and may show either that it was never executed, or that it has been fraudulently and materially altered by the opposite party since its execution. If the amendment to the plea in this case had been necessary, it would not have been sufficient, for the reason that it did not set out the nature of the alteration with sufficient definiteness. However, as it was. mere surplusage, any action of the court thereon was immaterial. The plea was good, irrespective of this part.

2. If the contract is not set forth and pleaded ás a basis of the action, so as to require a denial under oath, and the party, pending the trial, offers it in evidence, a physical alteration appearing in a material part of it requires explanation before it can be admitted in evidence. However, as soon as a prima facie case of explanation is made, the judge submits the issue as to the fact of the alteration to the jury; the materiality of the alteration always being a question for the-court. Civil Code of 1895, §§3703, 3704. But if the fact of the alteration does not appear by casual inspection of the instrument, and prima facie proof of the execution is offered to the court, and the court provisionally permits its introduction in evidence, the opposite party may, nevertheless, introduce evidence showing that it has in fact been altered; and if the alteration is material and is unexplained, the jury are authorized to deny validity to the paper. In such cases no formal pleading is required. The plaintiff may bring all proof in his power to show that the paper has not been altered, and the defendant, on the other hand, may attack it and in any legitimate way show the alteration.

3. Certainly the parol-evidence rule is not violated by allowing a party, against whom a paper is offered, to prove by parol that the.paper has been altered in a material part. In this case there can be -no question as to the materiality of the alleged alteration. To change a promise to pay by substituting $350 for $400 is certainly a material alteration; and when it appears, as it does in this-case, that ever since its execution the paper has been in the possession of the party offering it, there is no question before the court as to who altered it, if it has been altered. While written contracts are not to be varied by parol evidence, yet until a writing is shown to be the legal embodiment of a contract, the mere production of the unproved writing does not cut off parol inquiry. As. corroborative of the defendant’s testimony that the amount stated in the writing at the time shg signed it was $350, it was perfectly relevant to show that the parol agreement which was supposed to-be merged into the writing contemplated only that amount. Likewise, as tending to illustrate the plaintiff’s good faith or lack of good faith, it was permissible for the defendant to prove that she.had repeatedly asked the plaintiff for a copy of the contract, and that the plaintiff had declined to give it.

4. As to the plea of tender: the plaintiff makes two points against it,— (1) that it was conditional, having been coupled with a demand for the surrender of the purchase-money note; (2) that it was not complete, as the paper had been drawing interest, and no interest was tendered. Tender, generally speaking, to be available as a defense, must be unconditional. However, it does not vitiate a tender of money to couple it with a demand for a receipt for the amount, or, if it fully discharges an instrument, to couple with it a demand for the surrender of that instrument. The-record does not sustain the plaintiff’s position as to the interest. Apparently the payments were made as they became due, and the final $10 was tendered at the time it was payable. The contract contained the following language: “with interest from date at the rate of 8 per cent, after due.” We construe this as providing for interest only after maturity. While the expression “interest after date” would ordinarily mean interest from the date of the instrument, yet the context here clearly shows that it referred not to that time, but to the time when the payments should become due.

Judgment affirmed.